[This entry may be edited for errors, and/or added to, within coming days.]
There is no doubt that the criminal trial of Dharun Ravi, for alleged bullying of fellow freshman student and dorm roommate Tyler Clementi, deals with serious issues in a complex nexus of incidents and relevant concepts. Clementi, after all, committed suicide in later September 2010 within a few days of discovering that his roommate Ravi had been exposing some video representation of intimate encounters Clementi had with a transient mate, with use of a webcam and associated Twitter posts alerting other fellow students to what was going on. This sums up some of the facts of the case, as presented in newspapers as they were reporting on the trial (and as it’s been noted, the facts presented in the trial were largely or entirely not in dispute).
I’ve followed the trial coverage pretty closely. Before the jury rendered its verdict, I felt that a verdict of guilty for felonious “bias intimidation” was a little too strong for this case.
After closely looking at the results, and respecting the intricate set of findings the jury made on numerous counts and in accordance with what has been repeatedly called a murky New Jersey statute [1], the one used regarding bias intimidation, I would like to present a criticism that I don’t mean to sway the juridical proceedings that are apt to go on (Ravi’s attorney plans an appeal, for one thing).
Professional assessments of the trial
A Rutgers law professor, Louis Raveson, said this “was an incredibly important case, not just for New Jersey but for the country” (“Law experts say verdict breaks new ground,” The Star-Ledger [March 17, 2012], p.8). An analysis a day later says “[t]he verdict in the Tyler Clementi case could be a culture-changer, in more ways than one” (“Ravi verdict becomes ‘a cautionary tale,’” The Star-Ledger [March 18, 2012], p. 10).
A little bit more caution about this case was presented prior to the verdict by one notable analyst who hailed the verdict a day or two later. On about March 14, “The bias intimidation statute is one of New Jersey’s most important and effective criminal and civil rights laws,” said Steven Goldstein, chairman of an advocacy group, Garden State Equality. “The question isn’t whether it’s worthwhile. The question is whether it applies to this particular case” (quotes from Mark Di Ionno’s column, “N.J. bias law on trial alongside Ravi,” The Star-Ledger [March 15, 2012], p. 12). “Goldstein said he and his organization were reserving comment on that question,” the column added.
On the day of the verdict, Goldstein effused, “This verdict, combined with New Jersey’s new anti-bullying law, sends a powerful signal across the state and, frankly, across the country that the days of a kids-will-be-kids defense to brutal bullying are now over, and thank God for that” (quote from “Jury: It was hate[.] Ravi convicted of spying, bias against gay teen[.] 10-year term possible after rejected plea,” The Star-Ledger [March 17, 2012], p. 6).
Wrong concept was central?
People have hailed the verdict as a groundbreaker. But I think the problem is that the wrong concept was grappled with in determining how guilty Ravi should be considered, and for what.
The verdict’s biggest bite was in assessing guilt in line with the bias intimidation statute, which, it’s been noted, increases the severity of the crime by a degree, and adds severity of penalty (see Di Ionno’s column, p. 18, fifth column, sixth and seventh full paragraphs; or if accessed online [and if same as print version], 15th and 16th paragraphs). The statute also doesn’t articulate what it means and intends too well; the judge in this case said, “I’ve read the statute and read the statute more times than I can count. […] The statute, to me, is muddled. If I had written it, I would have written it differently. […]” (quoted in Di Ionno, p. 15). The different aspects of the statute in line with which the jury voted can be seen in a table in The Star-Ledger (March 17, 2012), p. 6.
I think the fundamental problem is that a lot of work—by the prosecution, by the defense to the extent it tried to counter the prosecution, and by commentators—has been done to see how, whether, and how well the bias intimidation statute addresses a case of invasion of privacy that led to a young student’s suicide. But to me the central concept that needed addressing was to what measurable extent the Internet exposure was a factor for which Ravi (and anyone who might do something similar) could be held accountable.
I’ll admit this proposed idea is almost tantamount to making a finding of “bias intimidation” with respect to just the defendant’s apparent state of mind (see criticisms in “Law experts say verdict breaks new ground,” The Star-Ledger [March 17, 2012], p.8, especially that of defense attorney Lawrence Lustberg—e.g., “[I]t is unprecedented for a conviction to be based on the state of mind of the victim”).
But my position is importantly different.
When this case first came to light and started being handled by a prosecutorial team, I thought some new ground could be broken with regard to the specific peculiarities of Internet exposure. And it would seem that the aim was carried through, to judge from many people’s hailing this case as a way “bullying” has been dealt with.
But the problem, to me, is that one key aspect of what has made this “bullying”—the Internet exposure—has been taken for granted without really examining this concept—or how this instance measures up—for its merits as much as there’s been a lot of talk about how the bias intimidation statute applies. In fact, from the Star-Ledger’s representation of the statute (i.e., what I’ve seen, which is not be all), there seems to be no explicit mention in the statute of Internet use at all.
Why is this difference important?
I’m not insensitive to the issue of college-freshman bullying
Let me pause and make an important point from my personal experience. I don’t think Ravi is a cad to be excoriated to the heavens for what he did; oh yes, he was rude to say the least, and reckless, and biased to some extent, to regard Clementi and the latter’s having a date over to their room as he did.
I understand having a college roommate who can’t stand you in some profound way. And I guess you could say I was bullied in some way by a certain roommate, though we didn’t use such terms about such a thing then.
In my freshman year, at George Washington University, I was among largely Jewish students for the first time in my life. [Background note: One future book I have long had gestating has the working title, The Jewish Experience in America from a Protestant Perspective, and aims to be based on my personal experience, reading, and research, and to take a balanced look at a complex phenomenon. It will not be uncritically philo-Semitic. And some of my recent blog comments are rather like spring robins hailing the more nuanced, balanced, and good-humored content of this manuscript, whenever it gets more finished.]
This was a cold shock. The first week of freshman year, easily the most scaldingly memorable for many students, had its share of defining culture clash. I still talk about one of my roommates today, more than 30 years later: Alan L., who was a full year younger than me and was so hyperopinionated, grotesquely self-centered, and rude—e.g., criticizing you for things of mere taste or personal habits that he didn’t share, such as drinking milk (not a point of religious precepts for him, just a matter of taste), or making fun of you for the tiniest passing peccadilloes—that I’ve thought of him this way: If one person was to be the basis for an anti-Semitic viewpoint, he would have been it for me, without apology. But of course you don’t just base your views of an ethnic group on one person.
With him, what I faced wasn’t an “anti-gay” attitude as Clementi did; it was “anti-goy.” I had never experienced this before. I would realize I was spoiled in coming from the exurban area I did, having graduated from Vernon Township High School, where although I was a bit alienated from fellow students for personal reasons I would take some responsibility for, at least I was accorded some general respect. I was ranked fourth in my class; I knew everyone in my class of about 180 by name or at least by face.
At GW, I was treated like I had to earn my wings—not only as a student (to some extent), but even “as a person”—all over again.
Regarding me and Alan L., there had to have been talk (such as between me and an RA, a “resident assistant”) about possibly changing rooms, but it was never done. Such was not typically accommodated in those days. I remember an RA talking to me in a friendly way—he was a Jewish male named Rich Miller from upstate New York, and very nice—and one of the ways he got on the same page with me about Alan L. was remarking with a sort of mild awe on Alan’s heavy Long Island accent (Alan had a “South Shore Long Island tough-stuff” accent, almost a caricature, that I will never forget—it wasn’t what you would expect among students at a private university).
A lot more can be said about this. Alan and I not only spent all of freshman year in the same room (with another roomie, Randy K., who became a doctor), but Alan and I spent half of sophomore year in another room—long story why.
And I think I did grow for the better in some ways from this cold experience—but my resentment 30+ years later shows that not all was positive in what I took away from it.
So, in short, I understand where Clementi was coming from in finding himself in a scalding situation with Ravi. And, sure, Clementi could have seen Ravi pretty much as I saw Alan L. 30+ years ago.
Today’s game-changer: the Internet
But what we didn’t have in 1980 was the Internet, and its potential public exposure.
And Clementi committed suicide, as I did not.
What may well have made the difference?
Not so much Ravi’s “being a bully” as addressed (however deeply) in state statute, but Ravi’s having a video’d encounter by Clementi accessible via some Internet alert. Clementi could have thought fearfully, “Did hundreds or thousands see this?”
That’s what could have shocked and demoralized him so much that he would jump off the George Washington Bridge.
After all, if mere bullying was the issue, Clementi and Ravi had only a very few weeks together. Maybe longer time was needed to determine whether there was a real bullying relationship. I had three semesters of Alan L.; and of course one semester was enough to know where I stood with him (not at all comfortably).
In short, isn't the Internet aspect the key factor that needs to be squared with in this type of case? Oughtn’t the legal professionals who were involved have sought to determine how much Internet exposure was really going beyond the acceptable limit?
Parsing “cyberbullying”; and generational differences
Indeed, when “cyberbullying” is talked about, the bullying aspect attracts sympathy and attention. It used to be, and to some extent still is, that bullying meant being threatened with being beaten up, or having your possessions harmed, or the like. It meant an appreciable threat of physical harm.
People have seemed to think that demeaning someone via Internet exposure made it an obvious candidate for a reading of “bullying.”
In given cases, this could well be, but is it always?
Part of the problem is that “kids” who are so well versed in electronic-media use—communicating through Facebook, Twitter, instant messaging, texting—have seen no problem saying all kinds of things through these avenues. This is the equivalent of yack, yack, yacking on the phone that was the primary way kids gossiped pre-Internet. It is, further, quite plausible to assume that often kids will give a catty edge to their comments when able to do it online, especially when this mode has the potential to broadcast a message so widely. They don’t think of the ramifications of someone taking a catty remark well beyond what was intended.
This is not simply to criticize them. It is to show a generational difference.
Forty years or so ago, when rock ’n’ roll was relatively new, parents dismissed it as “jungle music” and as apt to pervert the young. Today, you can’t have some newscast or newsmagazine without a story related to some star who has made his or her career in this area. Styles of communicating via electronic means could experience a similar growth in acceptance. What may seem intolerably catty or nasty in tweets today may be unremarkable 20 years from now.
But of course, laws reflect not just one generation’s preferences over, or in spite of, another’s; they are a way for society to outline acceptable conduct that respects the sensibilities of the widest number of people (this is the ideal, which is often not attained in actual legislation). So, some laws may protect the rights of some—especially younger people—in ways that seem to condone what older people might not approve of. For instance, to take a hot-button topic, a pro-abortion law has protected the rights and preferences of some groups that may have been considered typically those of “the young generation” in about 1973 (the time of Roe v. Wade), yet it thereby sanctions behavior that some among the older generations (who were still alive) condemned.
When it comes to cyberbullying, the aim should not simply be to slap young people in the face for some mere general idea of what older people find appalling—such as bitchy communicating exposed for the world to see. It should be to determine what type of communications, with regard to what context, and with what roughly ascertainable exposure, can be tolerated, and what can’t. And of course, the limits outlined in one decade may be changed in a later one.
Internet ambiguities more important than a deficient statute
In short, this case should have focused more on the ambiguities of Internet communications, and less on a statute that seems too confused even to address some more concrete, “traditional” examples of bullying. How many people, as it could reasonably be estimated, were exposed to Ravi’s tweets about Clementi? How much could this have been expected to matter?
Just having printouts of a plethora of communications doesn’t simply and loudly mean “these kids were going nuts with an unacceptably high-handed and at times biased approach to Tyler Clementi.” Sure, having hard-copy evidence, and a clarifying timeline, are important in making a case. And of course, these helped in making the determinations that were easiest for the jury to reach—on whether Ravi destroyed evidence, etc. (“Jurors say they were open-minded, but evidence was strong,” The Star-Ledger [March 17, 2012], p. 7, especially from juror Bruno Ferreira: “…Nothing means we could be personally biased toward the defendant. You have to look at all the facts and the evidence. That’s why you have 24 counts guilty and 11 not guilty.” And: “Ferreira ‘said decisions on the charges of witness tampering and invasion of privacy were “easy” and “cut and dry” ’” [p. 7, columns 2 and 6].)
As juror Ferreira also said, “We could not prove that [Ravi] did it purposely to intimidate Tyler. […] We couldn’t prove that he did it knowing that Tyler was going to get intimidated because of his sexual orientation.
“But we came to the conclusion where, with the evidence that was provided by the state and the defense, […] that it showed that (Clementi) did…have a reasonable belief that [Ravi] wanted to intimidate him because of his sexual orientation” (“Jurors say…,” The Star-Ledger [March 17, 2012], p. 7; non-bracketed editorial changes in original).
If this was such a watershed case, as news reports have suggested, and it can be a “culture-changer,” then consider this: in capital murder cases, juries need to find guilt beyond a reasonable doubt. In this case, Clementi actually died, though Ravi was not on trial for his death, nor do I think many people consider Ravi to have been a necessary and sufficient cause for Clementi’s death. But what does it mean to say “(Clementi) did…have a reasonable belief that [Ravi] wanted to intimidate him because of his sexual orientation”? How can a jury assess that? Simply because the clumsy statute seems to require it?
Why not look more closely on the nature of the Internet communications involved? Don’t take for granted that if someone alerted others to a homosexual encounter via tweets that this automatically means (in some old sense) bullying. Instead, what ambiguities about the electronic/Internet kind of communication, and what kind of mitigating or, on the other hand, “inculpating” context, do we also need to look at?
###
