Just what is the crime here?
Dharun Ravi, 20, formerly of Rutgers University, NJ, was convicted on all 15 counts brought against him: invasion of privacy, bias intimidation,lying to investigators, trying to influence a witness and tampering with evidence. From the NYTimes article:
"The case was a rare one in which almost none of the facts were in dispute. Mr. Ravi’s lawyers agreed that he had set up a webcam on his computer, and had then gone into a friend’s room and viewed Mr. Clementi kissing a man he met a few weeks earlier on a Web site for gay men. He sent Twitter and text messages urging others to watch when Mr. Clementi invited the man again two nights later, then deleted messages after Mr. Clementi killed himself."
"Mr. Ravi, 20, wearing a dark suit over his slight frame, sat expressionless as the jury forewoman read the verdict on the first count, of invasion of privacy. But he seemed surprised when she pronounced him guilty on the next charge, of bias intimidation. His eyes popped and he quickly turned his head from the jury."
...
"Mr. Ravi had rejected plea deals, because prosecutors would have required him to admit to bias intimidation. His lawyers said he simply did not believe he had committed a hate crime. They argued that he was “a kid” with little experience of homosexuality who had stumbled into a situation that scared him."
...
"Mr. Kaplan, the county prosecutor, rejected suggestions that Mr. Ravi would not have been on trial if Mr. Clementi had not killed himself. Even if he had not, he said, “under these facts, under this evidence, we would prosecute this case.”
I remember thinking "What a horrific case! What kind of values did the kid who spied grow up with?" when I first read about the suicide of Tyler Clementi a couple of years ago. Then, as I read this article in the New Yorker, I felt more ambivalent about the charges. Is this a hate crime?
What must have gone through Clementi's mind over the whole incident, that prompted him to commit suicide? He appears to have been at a most vulnerable stage, the start of 'coming out' to the world, having informed his parents just shortly before joining college, and starting to explore his sexuality. Was he punishing only Dharun for harassing him, or trying to punish his mother, whose initial rejection he sensed. From the New Yorker article by Iain Parker:
"When he described that experience to Cruz, Clementi reported that his father was “very accepting” of his news, but added, “Its a good thing dad is ok w/it or I would be in serious trouble / mom has basically completely rejected me.” He later added that she had been “very dismissive.”
Jane Clementi told me recently that Tyler announced his sexuality to her in a private, late-night conversation, which “snowballed” to cover his perceived shortage of friends and the uncertainty he had about his faith. At the end of their talk, she recalled, “he cried, I cried, we hugged.” They said that they loved each other. But, Jane Clementi said, “I must admit, other than being surprised, I felt betrayed.”
And, finally, after the whole sordid saga unravels, in digital footprints and reconstruction of the sequence of events leading to the discovery of Tyler Clementi's body in the Hudson, a sad footnote from his mother.
"On the night Jane Clementi learned that Tyler was gay, she said, “I told him not to hurt himself.” Not long before, a girl from his school had committed suicide. “We had talked about it briefly that summer, and for some reason that thought came to mind. And all I said was ‘Don’t hurt yourself,’ and he looked me right in the eye and he laughed, and said, ‘I would never do anything like that.’ ”
Would this have been prosecuted as a hate crime if Clementi had lived? It is hard to know, even though the prosecutor avers that they would have done so with equal zeal.
That is exactly the question many people are probably asking. At least, that is what I wondered after reading the NYT report and the New Yorker article on the day of sentencing. I think the presence of the webcam and Ravi's making public the content of the goings on in his dorm room would most likely have been a disciplinary issue dealt with by Rutgers and not a court case, had Clementi not committed suicide, no matter what the prosecutor says or what the NJ law defines as hate crime.
I think Ravi's legal counsel should have persuaded the family that he was better off taking the plea bargain deal offered to him by the prosecutor's office who had put on the table the entire "...and the kitchen sink" array of charges. The penalty in lieu of that was some 600 hours of community service and a fine. But once Ravi rejected the plea and decided to go to trial, prosecutors had little choice other than to go to court with the charges they had lined up. The trial ended in conviction and Ravi now faces far harsher sentencing than community service. Also, although he grew up in the US, Ravi was born in India and is an Indian citizen. He now faces the possibility of deportation to the "country of his birth." Having acted like an arrogant jerk and thinking he could get away with this kind of bullying, he now stands to pay the price with either jail time or having to re-make his life in India.
Anti-bullying steps ought to be in place beginning in elementary school. Children should not grow up thinking that they can indulge in activities in the schoolyard with impunity which can land them in jail as adults. Kids will be kids but we need to impress upon them early to refrain from behavior which is considered mere prank at one stage in life and hate crime later.
Posted by: Ruchira | March 18, 2012 at 10:17 AM
I basically agree. The invasion of privacy charge is clearcut, but the bias stuff is relatively flimsy. The New Yorker article made clear that Ravi finds poverty uncool, that Clementi didn't like FOB immigrants, that Ravi generally preferred his people - straight and gay - fratboyish and not nerdy. It seems fairly likely too that what all these webcam watchers were most titillated by was the "sketchiness" of the man, who's much older, a working class type and not a college student, somewhat overweight etc, basically not what they expect of partners for college freshmen. Lots of immature attitudes, but there's not that much evidence in all the interviews and IM conversations of homophobia as one naively understands it.
"Would this have been prosecuted as a hate crime if Clementi had lived? It is hard to know, even though the prosecutor avers that they would have done so with equal zeal. "
It's a generic, though problematic, feature of prosecutions and crimes in general, no? Get caught driving drunk and you get a license suspension; happen to hit someone and you're up for manslaughter. Attempted murder carries a lower penalty than murder, etc. Of course, the actual charges here make no reference to the suicide, but the hate crime stuff here seems to me to be more about people outraged by a sad death, and wanting to find someone to pin it upon. Not only is there not much clarity on why Clementi committed suicide, they've not disclosed the contents of the suicide note, and he seems to have had suicidal thoughts well before coming to college.
Like Ruchira I'm also surprised at the decision to not take the plea bargain. He spies on his gay roommate, broadcasts intimate videos of the guy to the web, the fellow commits suicide, and he thinks he can get away with less than community service? What a moron.
Posted by: prasad | March 18, 2012 at 10:49 AM
The first plea deal wasn't attractive to Dharun- it would have involved a reduced duration prison sentence, but the second deal offered was relatively sweet- just community service and a fine in exchange for admitting guilt in the 'bias intimidation' charge. It was a stupid decision by an immature kid who was bent on public vindication of his actions not rising to the level of a hate crime, without realizing that it would indeed be treated as one by the law.
Posted by: Sujatha | March 18, 2012 at 10:56 AM
Yes, but where were the parents? I doubt that the twenty year old Dharun Ravi, who was accompanied by his father and mother to court every day, made the decision to reject the plea all by himself. I think the family made an emotional decision based on some vague feelings of honor in order to clear Ravi's name, without understanding the legal implications of the charges. Goes to show that you can be a whiz with the computer and the frisbee, but still be utterly dumb when it comes to the law.
Posted by: Ruchira | March 18, 2012 at 11:24 AM
I do want to very partially walk back my 'no homophobia' assessment of from the previous comment. It's not what Whoopi Goldberg would call homophobia-homophobia, but there IS a homosomething that Dharun Ravi ought to acknowledge (well, he can't if he's in a court case, but we can do it for him instead). If that had been Clementi with an older and out-of-place woman, or if our fat partner guy had been getting it on with a female student, I daresay these "kids" wouldv'e been amused and titillated just the same, but someone in that group might have said, 'hang on, are we really going to spy on this?' It seems sensible to me to assume that the fact of it being two guys reduced the likelihood/strength of that intuitive response. Again, we're talking immaturity and lack of context, not homophobia per se, but it's not quite neutral on sexual orientation either.
Posted by: prasad | March 18, 2012 at 11:30 AM
Dharun's actions aren't free of homophobia- there is a clear element of disgust in his numerous tweets/emails etc. It may not rise to level of hate as we normally perceive it, but the intent to harass Clementi for this 'discomfort' that he felt at having a gay roommate is most definitely there. He may have felt remorseful later, but the apologetic message he sent was too late anyway.
Posted by: Sujatha | March 18, 2012 at 11:57 AM
Hmm, I thought his apology was part of the post-death coverup attempt with deleted messages, trying to get that other student to shut up etc. Did the apology in fact happen before the suicide? He (legal team) probably should have made more of that if so.
Posted by: prasad | March 18, 2012 at 12:44 PM
From articles I've read, I conclude the possibility that Dharun overdid everything he did for fear of being gay himself. Perhaps legally insignificant, this interpretation would put yet a different light on the hate crime. And, if you tip a suicidal person to suicide, is that different from making a non-suicidal person's life hellish enough that you tip HIM? I am reminded of something Toni Morrison wrote decades ago -- that immigrants to the US fully assimilate only when they have learned to despise our classical out-groups, or speak as if they did. Witness the Korean grocer in Spike Lee's "Do the Right Thing" who simply could not find terms ugly enough to say what he had to say about African-Americans. Among other sad but interesting issues here is whether Dharun's lawyer advised him to leap to take the community service deal, for the very good reason that he's the type of boy that tends to get made an example of: arrogant, uncomprehending of the gravity of his actions, and -- foreign enough.
Posted by: Elatia Harris | March 18, 2012 at 01:59 PM
There is a subsection (3) to subsection 'a' of the statute which, while not requiring the victim's survival, would certainly be easier to prosecute with testimony from the victim as to his state of mind. From the end of Sujatha's excerpt: "sexual orientation, or ethnicity; or"
Posted by: Dean C. Rowan | March 18, 2012 at 02:14 PM
@Ruchira: You may have a point in that the family may have made the decision, to 'vindicate' their honor, as it were. Shades of the Raj Rajaratnam behavior appear,the same blindness and pride that begs to be tripped up.
@Prasad: The apologetic letter was sent with a timestamp about 5 minutes after Tyler was presumed to have jumped off the bridge. Given the fuzziness of the timing, it may have been a genuine one, rather than a coverup. The remaining tweets, etc. most definitely were coverups.
@Elatia: That's an interesting take on the assimilation of immigrants. So Dharun may have partly done what he did in an attempt to be part of the mainstream, but it backfired badly. It's possible that Dharun and his family may have disregarded advice from the lawyer on the second plea bargain, see what Ruchira suggested for a reason why.
@Dean: Sure, it might have made it easy to prosecute with live testimony from Clementi about Dharun's behavior, but I seriously doubt that it would have even made it to the courts, despite what the prosecutor says.
Posted by: Sujatha | March 18, 2012 at 02:29 PM
Elatia,
- that's a very nice observation from Morrison. I'm thinking now it might also be related to the fanatical convert phenomenon?
- the who did the tipping issue is hard for me to come to grips with. Sure, if DR hadn't been up to his tricks TC mightn't have attempted suicide that week. Then again, if his mother had been more accepting when he came out he might have been fine as well. Rinse and repeat with Rick Santorum (and rinse again.) And it's not all bias and prejudice stuff either. Maybe if his encounters with stranger-guy had been vastly more satisfying and comforting he's still be here. And always, for most people this sort of bullying doesn't lead to suicide.
I remember there was this neat thought experiment where ten thousand people all shock a person simultaneously in a Milgram type setup, no-one of whom can cause more than mild discomfort, but whose cumulative impact is excruciating pain or death.
Sujatha, five minutes really does make it hard to judge. My own hunch is that it was his first cover attempt, but who's to know either way? It's a bit worrying that such purely subjective determinations are the sort of thing the jury probably had to weigh in mind to decide whether he was guilty of the bias charge...
Posted by: prasad | March 18, 2012 at 03:56 PM
Also, the trick of getting DR on the coverup is a bit dodgy, reminiscent of previous iterations with Clinton and Martha Stewart. Especially in this instance; I find it hard to see that an 18 year old trying to hush up a terrible mistake is committing a separate crime in that instinctive, immediate, terrified, self-protective measure. If you find him a month later trying to destroy evidence, sure, throw the book at him, but it's a bit cheap based on immediate actions.
Posted by: prasad | March 18, 2012 at 04:05 PM
The assertion of the prosecutor that the death of Clementi made no difference in bringing Ravi to trial is ludicrous. It does not pass the laugh test. Ruchira is correct that administrative discipline at the University would have been a sufficient excuse not to expend State resources for a criminal trial. This would not have been an unreasonable or uncaring decision. The prosecutor's statement was solely PR, and has nothing to do with the facts of the case, nor the conduct of the trial, nor the verdicts.
Nor is the decision to prosecute unfair or unjust. For example, the IRS will ALWAYS prosecute celebrity and high profile tax cheats and send them to JAIL. This is a warning to non-celebrity, and non-high profile tax cheats of what will happen to them if caught. This practice goes a long way to reducing non-compliance, and saving the government hundreds of millions in criminal prosecution and audits. There isn't a single college campus in the U.S. that is failing to take note of the Ravi case.
There is a concept in tort law that says, "You take your victim as you find him." [I'm not sure how it carries over to criminal law, but it is instructive.] If you jump out from the bushes to scare someone in a prank, you cannot mitigate your liability for the victim's death, because you were unaware of the victims diseased heart. All young people want to be excused from the serious consequences of their actions on the basis of, "I wouldn't have done it if I knew he was overly sensitive," "I didn't know he was going to kill himself," and so on. Sometimes it takes a tragedy for the lesson to sink in.
There was a tragic case about ten years ago that resulted in multiple deaths in a traffic accident. Several teens executed a prank that involved removing a STOP sign at an intersection. As I recall, all of the offenders received significant jail time, and one got 20 years. Now the families of the offenders were devastated. I cannot say what I would have done as the judge. The offending teens were devastated, themselves, by the outcome of their practical joke. They understood the terrible consequences that resulted from their conscious decision to break the law. Still, they and their families could not end their pleading that the sentences were overly harsh. They had suffered, too. The teens learned their lessons and were never likely to repeat such a mistake. Finally, they didn't mean for the worst to happen, and they were so very, very sorry.
Ruchira and others commented on the role of the Ravi family, and the relationship to the defendant's attorney. The attorney can not advise the family, or encourage them contrary to wishes of the defendant. The responsibility of the criminal attorney is to the law, and to the client. END OF STORY. I have no idea what the cultural or family issues are in the Ravi family. Did they encourage an obstinate position of innocence for the sake of preserving family honor? I have no idea. However, what I sensed from Ruchira's discussion of the family's role, is that the family would have placed a higher priority on protecting their son from harm, and a prison term. Had he taken a plea, they would have rallied to his support, and helped him get his life back on a moral and productive track. That's what I would have done. I would also have helped him come to terms with his responsibility in the humiliating and painful circumstances of Clementi's death.
Sujatha was very helpful in clarifying the legal definition of a "hate crime" in this case. One cannot go by the common dictionary definition of terms when they apply to law - especially criminal law. I wonder if Ravi is still saying to himself, and others, that he doesn't hate homosexuals nor is he biased against them. Has he internalized what the legal definition of "hate crime" means with respect to what he did?
Like Sujatha, I wonder.
Posted by: Norman Costa | March 18, 2012 at 06:31 PM
My sympathies are not with Dharun here, although I feel for the Ravi family. I believe Dharun, in intending only to add to Clementi's wretchedness, to mock him and out him and invite others to invade his privacy, played a key role in his death -- even if some other person or situation could have tipped Clementi, this was the one that did. Dharun intended harm, and, like almost everyone who intends harm, did vastly more harm than he intended. He was offered a terrific deal, and it does Clementi's memory no good that he didn't take it. I am sorry he didn't take it. I wonder if his lawyer was really "for" hm.
In divorcing, many years ago, I discovered I had a lawyer who was actually inimical to me. Long story, don't worry you will hear it. I confronted her. I was horrified at what I heard, and I fired her. She did nothing legally wrong or unethical, unless you think a lawyer needs to be 100% behind the client -- which is not legally necessary to representing that client in a way the law finds fair. I haven't checked for names, but -- could Dharun have had the same lawyer?
Posted by: Elatia Harris | March 18, 2012 at 08:13 PM
Elatia & Norman:
Unlike the case that Norm cites about the removal of the Stop sign which could be held directly responsible for causing the traffic deaths, Dharun Ravi's obnoxious behavior being the cause of Clementi's suicide is not so clear cut. If you read the 14 page New Yorker article (it is easier in print), you will notice a lot of contradictions regarding how much Ravi's snooping had disturbed or shamed Clementi. In fact, Ravi comes across as weasely and Clementi as angry and decisive, so much so that he had alerted Rutgers' housing authority about the invasion of his privacy by his roommate. The dorm's resident adviser was already aware of the intrusion and had warned Ravi that he was about to take action against him. Also, in an online exchange with a friend and on a gay website, Clementi discussed the matter and seemed quite contemptuous of Ravi's antics, saying he knew what to do. I don't think he was especially upset about being outed, having come out before his mother, a person whose opinion seemed to have mattered to him a lot. I cannot say what tipped him at last. Ravi did something very ugly and that deed having occured just before the suicide, may have put him in the wrong place at a very wrong time.
I don't know much about the Ravi family other than the professional credentials of the parents. I have sympathy for them that their young son's life has now been altered for the worse ... and forever. But they do not seem to have done a very good job of bringing him up as a thoughtful person. Success on paper and in terms of material goods appear to have mattered more to them than instilling decency and empathy. I have seen this lapse too often among recent immigrants. (Not that some spoilt rich natives don't have the same traits and preoccupations) Insecure themselves about their standing in a foreign land, immigrant parents are often more keen on making it good in America than worrying about the maladjustments and personality disorders of their confused offspring. Sad but true.
Posted by: Ruchira | March 18, 2012 at 08:45 PM
I read that NYer article too, Ruchira -- ambiguities aplenty in the case, and I think the community service deal recognized that bullying, ridiculing and spying are not the same as causing a roommate to choose death by suicide. Still, Dharun has some responsibility here -- will anyone ever know how much?
Parents may not teach you values, except by living their own values, but still I feel for Dharun's parents. I take your point about immigrant families being so anxious to establish themselves and get security that important considerations are a forfeit to that. In the Boston area, the teen-aged daughter of an affluent family from Bangalore died of anorexia. Both parents had demanding jobs, and the idea of anorexia was too alien to them to compel their serious attention. They could understand a girl getting crazy-skinny in the growing years -- knowing nothing of the real problem, and not accepting it as a possibility, they thought the girl's body weight would normalize when she stopped growing. People kept telling them about an illness that was culturally impossible and completely unacceptable. It is said they still do not accept their daughter died of it, and not of something else that had no diagnosis and no treatment. It's like something out of a fiction, so tragic. For all their high education, for all their high ability to jump into a new world and make it work for them, they could not see their daughter as the affluent American teenager she was, that they had struggled to make her in fact, and who was prey to diseases of affluence.
Posted by: Elatia Harris | March 19, 2012 at 09:37 AM
Oh, I do believe that Ravi should pay for his actions. The point was that had Clementi not died, this case would have probably been a university disciplinary case. And if Ravi and his family had some humility and common sense, the punishment offered in the second plea bargain (which shows that even the prosecutor believed that his actions were more mean hearted than murderous) would have sufficed. But Ravi misjudged the seriousness of the charges and his own culpability and is now in major trouble.
Posted by: Ruchira | March 19, 2012 at 11:49 AM
Regarding Norm's query about the "eggshell plaintiff" rule of tort law in the criminal context, it does not carry over. Conviction of a crime requires proof of "mens rea," a bad intention. Put simply, some crimes are general intent crimes, requiring only proof of a blameworthy intention; others are specific intent crimes, requiring proof of an intention to do some particular prohibited act. It gets messy fast. Also, in California, per the Evidence Code, "A person is presumed to intend the ordinary consequences of his voluntary act." I would emphasize the word "ordinary" here. The Code section goes on to exclude this presumption when the crime charged requires proof of specific intent, because it would remove from the jury consideration of the defendant's state of mind. If similar laws operate in N.J., then the jury would have had to find that Dharun intended specifically to intimidate Tyler.
Posted by: Dean C. Rowan | March 19, 2012 at 12:16 PM
There is a concept in tort law that says, "You take your victim as you find him." [I'm not sure how it carries over to criminal law, but it is instructive.] If you jump out from the bushes to scare someone in a prank, you cannot mitigate your liability for the victim's death, because you were unaware of the victims diseased heart. All young people want to be excused from the serious consequences of their actions on the basis of, "I wouldn't have done it if I knew he was overly sensitive," "I didn't know he was going to kill himself," and so on. Sometimes it takes a tragedy for the lesson to sink in.
Norman, I think there are a few problems here.
1) I think the word that's missing is 'reasonable.' One typically is culpable (I'm not sure whether I mean morally or legally, but I think for my discussion in pt. 1 both go the same way) for what one may reasonably foresee as the outcome of one's actions. It is reasonable to expect that stealing a stop sign, or driving drunk, could lead to dreadful outcomes. It is reasonable to expect that as you drive thru a neighborhood a child might run out of a building. It is not reasonable to expect as you ride down a freeway that a child or dog might fall from the back of a car, and regulate your speed with respect to that. Your discussion of jumping out of a bush and yelling boo seems questionable. Would a person who didn't take care of his car, causing a tire to blow up also be held responsible? Note that intent doesn't help - neither one intends a heart attack, and in each case there's some fanciful, possible but unlikely, scenario under which a sound might lead to heart attacks.
2) The question of DR's causal impact upon the suicide (as distinct from each of his clear fault re invasion of privacy, and the circumstances surrounding the bias intimidation charge) is tricky because it's in a weird mathematical regime - on the one hand his bullying significantly increased the likelihood of his victim attempting suicide. However, the absolute likelihood of suicide as a result of the bullying remains quite low. To take a similar case, bullying dramatically increases the risk that your victim will go shoot everyone in the cafeteria, however that risk for any instance of bullying is minuscule.
3) The question of causal responsibility is distinct from that of moral culpability. One can clearly foresee direct consequences of one's actions while remaining mostly, or completely, blameless for them. We don't want to say that skimpily dressed women going through bad places at night are responsible for being raped, or that when you publish an offensive cartoon you've murdered the expected victims, or that you're morally to blame for a theft if you leave the door unlocked. Not sure how directly relevant this is (indeed, the resulting action isn't a crime at all!) but it's a pretty important issue in general.
4) The civil -> criminal law analogy is inadvisable I think. To take the theft example above, your insurance probably would be quite interested to learn you didn't lock your door when you left, but only an extremely crazy judge would think there's a criminal charge to be filed against you.
Posted by: prasad | March 19, 2012 at 01:25 PM
Dean, what about death due to negligence and such? Is the idea typically to deduce mal-intent from indifference, or is it do do without intent for those crimes?
Re intent, I was trying to think through the difference in our intuitions between the bullied suicide and the bullied murderer. I'm not sure, but but it seems like an "anti-Knobe Effect" could be at play. The "normal" rule is, when your deed, perpetrated with disregard toward a consequence, leads to a bad consequence, people want to blame you, while when it leads to a good consequence they don't want to praise you.
But consider: a bully harasses a student. You say to him, 'but something horrible might happen!' and he replies, 'well I don't intend that, and if it does I don't care'
case 1: bullied student commits suicide.
case 2: bullied student picks up a gun and kills fifteen kids in the school cafeteria
It seems empirically like more people want to blame the bully in case 1 than in case 2. I would naively expect the Knobe effect to go the other way - in K.E. we want to see the indirect agent as more "intending" the worse the outcome is, but here it seems we want to blame the bully for the suicide but not for the murder.
I was thinking maybe it's actually a "screening" effect because of the agency of the bullied person. When you're considering the outcome with respect to the bullied student himself, you want to blame him for the awful outcome, but not for the relatively benign one. That is, the K.E. on the bullied student leads to anti-K.E. intuitions for the bully.
PS: if you follow the second link, it says "Updated values of screening constants were provided by Clementi et al."
Posted by: prasad | March 19, 2012 at 02:10 PM
Dean,
I knew you would come through. Thanks.
Prasad,
I'm only half a lawyer. I put my second wife through law school. For the intricacies of liability in tort law, you need a complete lawyer. However, I found that when confronted with a serious issue of who's responsible, and who should pay a potentially huge judgement, tort attorneys really go to work to make things happen. Dean could tell you a whole lot more. From my former wife's law books and assigned readings, "The Buffalo Creek Disaster," comes to mind. I found this area fascinating.
A kid jumps into traffic and you kill him with your vehicle. Your brakes were faulty and contributed to not being able to stop in time. If your vehicle inspection expired, and it can be shown that the defective brakes would have been noted in a routine inspection, then you are probably going to be held liable.
Maybe Dean can tell you about the guy who jumped off a 10 story building to commit suicide. The jumper is shot by a stray bullet, on the way down, fired out of a seventh story window. The jumper is killed by the bullet before he hits the ground.
In the case of the removed STOP sign, the issues of intent, remorse, family pleas, no prior record, etc, get to be heard before sentencing. What the judge does with all that is entirely up to him or her.
Again, Dean could tell you more, but sometimes doing the 'right thing' can land you in hot tortuous waters. If you decide to moderate an online chat room or blog comments, you might wind up assuming responsibility for damages that could result from chat and comments. From a liability point of view, if you own a blog or chat room, you might be better off never, ever moderating the comments.
Posted by: Norman Costa | March 19, 2012 at 03:08 PM
This is what I meant by messy. Criminal negligence entails a degree of recklessness that exceeds ordinary tort negligence, although plain vanilla tort negligence can escalate to willful misconduct or recklessness, too. Some crimes are defined to require a mens rea of only criminal negligence, that is, even if the act itself is lawful (hence a general intent to commit the act by definition can't be culpable), executing it recklessly can rise to the level of a crime. The intent effectively goes to the manner of conduct, rather than to the act itself.
Knobe's work addresses how people cast perceptions of causation in moral terms. A bad side-effect is condemned, a good one ignored, relatively speaking. The law promotes this sort of response, too. Rarely does the law reward a gold star for good behavior! Even Good Samaritan laws merely relieve attempted do-gooders of liability for the harms their well intentioned efforts cause. But the law is also a little more complicated, involving concerns distinct from popular morality and norms, and how people allocate "blame." The law necessarily draws arbitrary lines when it comes to causation, and it tries to deter future misdeeds. Blame is not the only factor.
Suicide is a special case, inasmuch as even if we want to allocate blame to the victim, it's a little late to do so. (Don't we often respond to stories of suicides, "How could anybody be so selfish?") I think you're right about a screening effect in case 2. In that case, we can respond legally meaningfully to the student's actions.
Amazing little coincidence there in Wikipedia!
Posted by: Dean C. Rowan | March 19, 2012 at 03:31 PM
I'm going to take Dharum Ravi's position to bring out another issue. In some jurisdictions, accepting a plea shuts you off, completely, from appealing your conviction. As I understand it, this may even apply when new evidence of innocence arises.
About 20 years ago there was a spate of false accusations of child molestation in satanic rituals leading to convictions of child care workers. One was the Kelley case resulting in the convictions of husband and wife. From the start, the prosecutors case was flawed. This and other cases were found, later, to be the result of a community thought disorder of moral outrage, overreactions, and generally bizarre circumstances.
The husband and wife were tried, separately, and both convicted. The Governor was sympathetic to the defendant positions, but decided to let the appeals process play out before entertaining a pardon. The process was long, arduous, and painful. Eventually, the wife took a plea and admitted wrongdoing. She could not endure jail any further. Her husband begged her to stand pat. He needed her support. Her plea would, also, cast doubt on his own case. After a very long ordeal, the husband's conviction was thrown out.
The marriage broke up. The wife's conviction can never be overturned. The benefit of hindsight says she should have stood with her husband. I cannot judge her, though, because I do not know what her state of mind was, nor the mental strain and pain she endured.
I do not know if this issue applied to Ravi, though I suspect it probably did. How much it weighed on his decision is something I won't even guess.
A final note on Ravi's position: A lawyer may advise a defendant NOT to issue an apology, or even express sorrow over the injury or death of a victim. This is not absolute, but an attorney does not want genuine concern and comments from the heart to be construed as admission of guilt or remorse. I don't know whether or not Ravi said anything to the family, either before or after the trial.
Posted by: Norman Costa | March 19, 2012 at 03:36 PM
Here is a hate crime with little doubt concerning the application of law and the definition of hate crime.
http://www.cnn.com/2012/03/21/justice/mississippi-hate-crime/index.html?hpt=hp_t1
Posted by: Norman Costa | March 21, 2012 at 04:58 PM
I did suspect there might be a 'poison pill' hidden in the plea bargains offered. Maybe this places DR in a stronger position to appeal once the sentence is handed down, but from what we know it doesn't seem like the best decision.
The Mississippi case was clearly a hate crime, no doubt about it.
Posted by: Sujatha | March 21, 2012 at 07:42 PM
Seems to have been a 'matter of principle' that prevented DR from taking the plea bargain. He has apologized to Clementi's family, only after the trial. See here.
"I'm never going to regret not taking the plea," Ravi told the Newark Star-Ledger in an interview published on Thursday.
"If I took the plea, I would have had to testify that I did what I did to intimidate Tyler and that would be a lie. I won't ever get up there and tell the world I hated Tyler because he was gay, or tell the world I was trying to hurt or intimidate him because it's not true," he said."
Interview here:
http://blog.nj.com/njv_mark_diionno/2012/03/exclusive_interview_dharun_rav.html
Posted by: Sujatha | March 22, 2012 at 03:22 PM
Exclusive interview with Dharun Ravi: 'I'm very sorry about Tyler'
http://blog.nj.com/njv_mark_diionno/2012/03/exclusive_interview_dharun_rav.html
Posted by: Norman Costa | March 23, 2012 at 04:21 AM
The letter written by Tyler poses some interesting possibilities. (a) It incriminates DR in some way in the suicide. In which case, the prosecution would have brought harsher charges against DR and introduced it as evidence, which they did not. (b)It makes no mention of DR, which might explain why the prosecution chose not to admit it as evidence. But if it wasn't clear from it that DR's actions played a direct role in the suicide, would presenting it have actually influenced the jury in a different direction regarding the bias intimidation charge?
In other terms, can the withholding of information have a different effect than supplying it? If I was on a jury and not allowed access to the letter, saying the 'suicide is not the issue', but other charges are, it is in effect like indirectly telling me that there was a suicide but I shouldn't consider it, only determine whether bias and other crimes occurred. I would be subconsciously biased by the fact I knew that a suicide occurred, even if instructed not to consider it.
I wonder if that is the tack that the defense team is going to take on the appeal.
Posted by: Sujatha | March 23, 2012 at 05:59 AM
There seems also to be a generational divide within the gay community regarding Dharun Ravi's actions and motivation.
Posted by: Ruchira | March 24, 2012 at 12:28 AM
Sujatha: If the letter could have functioned to exculpate DR, as with your scenario (b), it wouldn't have been the prosecution's decision to admit it or not. The prosecution would have been obligated to disclose it to the defense. At that point, some other evidentiary reason for excluding it might have applied, such as a level of prejudice against the defense that outweighs the probative value of the letter.
Posted by: Dean C. Rowan | March 24, 2012 at 02:58 PM
Dean, actually that would be a scenario (c), where the letter explicitly clears DR. The prosecution would have to disclose it then, which they didn't do, obviously.
My scenario (b) was one in which there was no mention of DR, which could be allow the prosecution to not disclose its contents. But that it itself shows that had the prosecution chosen to present it, the jury might have come away with a different impression of whether DR's behavior had triggered the suicide.
Posted by: Sujatha | March 24, 2012 at 03:55 PM
Sujatha, I originally mistook what you were after. Scenario (b) would likely mean the letter was irrelevant to the actual charges against DR (privacy, intimidation, etc.). N.J. law may operate under different rules, but in CA the difference between (b) and (c) isn't so clear cut. If the contents of the letter are favorable to the defendant and material to determination of his guilt, then disclosure to the defense is obligatory. So, for example, even if without mentioning DR the letter clearly assigns independent reasons for the suicide, it could be materially favorable to DR respecting charges relating to the death. But there were no such charges. In that case, the letter might not have been admissible at all, because its contents were irrelevant and, moreover, could have been highly prejudicial to DR. It's one thing for jurors to be apprised of the death of the victim, still another to hear or read the victim's final communication about his condition. It would have given the jurors a fuller sense of TC's personal plight, his pain, desperation, and vulnerability, not long after the undisputed actions of the defendant took place.
There is a lot of discussion, with which I'm completely unfamiliar, of the questionable effectiveness of jury instructions. I don't know what ensued with this case. Were the jurors also told not to consider the suicide at all? Or just the letter?
Posted by: Dean C. Rowan | March 24, 2012 at 05:32 PM
From what the jurors mentioned in some news article (I think the link is there in my post), they were instructed not to consider the suicide. "The jury did not take into consideration that Clementi committed suicide or that Ravi would face jail time for the convictions, Leverett said."
How does one not take into consideration a suicide, unless one did not know it had occurred, is hard to contemplate.
Posted by: Sujatha | March 24, 2012 at 06:31 PM
This is a predicament of jury instructions. From a 1990 law review article: "Empirical research clearly demonstrates that
[limiting instructions] are not effective in preventing the jury from improperly using information." It's probably safe to guess that this situation remains. Then again, there is a point to having a panel of 9 or 12 jurors. One can imagine, hopefully, that at least a minority among them understands the court's instructions and urges the others to comply with them. In other words, it is possible for a jury to apply the instructions (the law) to the facts (taking account of limiting qualifications) and to arrive at the same result, but one not skewed by bias. Perhaps the better policy would have been to let the university discipline DR. That itself doesn't mean the law, however reactionary, wasn't followed. Speaking completely theoretically here.
Posted by: Dean C. Rowan | March 24, 2012 at 07:00 PM
Dharun Ravi is set to be sentenced tomorrow. There is widespread unease about the possibility of his getting a long jail sentence, even within the gay community.
Posted by: Ruchira | May 20, 2012 at 09:08 PM
Here is a liveblog from the sentencing. Seems fair enough to me, not enough for Clementi's family and (maybe?) too much for the Ravi family.
Posted by: Sujatha | May 21, 2012 at 02:23 PM