Mar 182012
 
 March 18, 2012  Breaches, Court, Misc, Surveillance, U.S.

The New Jersey Star-Ledger, which has been all over the Dharun Ravi case, has a follow-up today on how this case and conviction will be a “game changer:”

“It’s a cautionary tale,” said Jenny Carroll, a professor of criminal law at Seton Hall Law School. “Behavior that used to be considered the norm, or acceptable, has become criminal.”

The verdict warns us to respect people’s space and their differences, she says, not just because it’s the right thing but because it’s criminal if we don’t.

“This will be the end of the ‘boys will be boys’ defense,” Carroll said. “That’s what makes this verdict more or different than other verdicts. Every mother who is packing the kid up for college will say ‘You put that webcam away. You may think it’s funny, a prank, but you don’t use it because I’m not going to come and bail you out of jail.’ ”

Read more on NJ.com

Somehow, I doubt this case will be a game-changer as most people who might engage in bias intimidation will likely not recognize themselves as engaging in such behavior. Some will even correctly argue that some of their conduct or speech is protected speech under the First Amendment. And of course, not all states have laws like New Jersey’s.

I had mixed reactions to the verdict. I think the jurors did a diligent job considering the array of charges before them, especially since they were essentially asked to draw inferences about the intent underlying some of Ravi’s behavior. Would Ravi have used the web cam or stream it if his roommate had brought a girl to the room? Maybe, maybe not. But even if you think that he wouldn’t have done it under those conditions, does that mean he was trying to harass his roommate? Not necessarily. Should he have known that his roommate would feel intimidated by such actions? That’s a difficult one. Did Ravi appreciate that an action that might lead to fear of exposure/embarrassment is intimidation under New Jersey’s law? Should that matter?  Suppose he said, “Yes, I knew with reasonable certainty that my roommate would be embarrassed by my invasion of his privacy.” Is embarrassing someone justification for criminal charges?

Calling this a “hate crime” when there was no evidence of any “hate” – a strong emotion – is misleading. Even calling this a bias intimidation crime is a stretch, I think.  And there is a real risk that over-sensitivity to insensitive clod-like speech is leading to what is really protected speech being criminalized as “bullying” or “harassment.”

So what could or should the take-home message have been? I would have preferred that it be that we value our privacy and if you invade it, be prepared for criminal charges – regardless of your intention or your awareness of how the individual might feel.

What Dharun Ravi did was despicable.  And even if he had no bias against gays, the privacy invasion itself was despicable. What a shame that the focus of the case didn’t stop with that, as we might have had a clearer take-home message for youth.

 

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