Sunday, October 3, 2010

Over at 18

Unless you live in a cave, you know the press version of what happened:  Rutgers University student and accomplished violinist Tyler Clementi committed suicide by jumping off the George Washington Bridge after his roommate, Dharum Ravi, and another classmate, Molly Wei, secretly secretly recorded him engaged in a homosexual encounter and put the video on the internet.  Ravi and Wei have each been charged with multiple counts of invasion of privacy and face at least the theoretical prospect of spending years in prison.  All three were 18 years old.
Tyler Clementi, Dharum Ravi, Molly Wei
I call that "the press version" of what happened because I don't actually know what occurred.  Neither do you.  I have no particular reason to think that the events as reported are not true, but I've seen even good reporters get the facts dramatically wrong often enough - especially in sensationalist, attention-grabbing stories like this - that I'm always wary.  More than that, though, the press version, even if perfectly accurate, is incomplete. 
Why did Ravi and Wei use the webcam and then broadcast the video?  What drove them to it?  What, if anything, did they hope to achieve?  Were they motivated by hatred of Clementi?  Because they thought he was gay?  Because he was a violinist?  Because he snored?  Was it just a prank?  Because it was sex?  Because it was gay sex?  Because the guy he was with was someone they hated?  Or lusted after?  Or told a bad joke at dinner the night before?
And what of Clementi?  Why did he jump?  Because he's gay?  Because he's not?  Because he isn't sure?  Because he was embarrassed by the particular guy he was with?  Because the camera angle was tough?  Because other people were making fun of him?  Because they weren't? For reasons altogether unrelated to the video but coincident in timing?
There are lots of other questions I could add, but I'm alread being a whole lot more flip about this than I intend, so I won't.  Besides, I'm getting sidetracked by the questions, which only deal, after all, with personal motivation.  See, personal motivation, the reasons why they each did what they did, that's only part of the story, too.
Here's another part: We live in a world of surveillance.  There are cameras on busy street corners, cameras in parking lots.  You're photographed at the bank and the post office and when you're in WalMart.  At the bus station and in the subway.  Cameras record your license when you pass through a toll booth.  Other cameras are finding out if you're running a red light or speeding.  There's a camera on the tip of someone's shoe or the end of his cane taking pictures up your dress.  There are cameras recording what goes on in public restrooms (yep, legal ones).  
And we (that's a societal "we"; I'm not talking about you and me, though maybe I'm talking about you) live for it.  Reality TV?  You bet.  Take, for instance, Apprentice contestant and now-former Brooklyn Assistant District Attorney Mahsa Saeidi-Azcuy.  Here's what NBC has to say about her.
Mahsa, 29 (Brooklyn, New York), works as an Assistant District Attorney in Brooklyn, New York, and is the host of two web shows on the side. Dealing with the financial pressures of being the sole breadwinner in her family, Mahsa has gained personal strength in this economic downturn. Before receiving her J.D. at Brooklyn Law School, Mahsa studied biology at the University of Virginia, and film at the New York Film Academy. She passionately fights to promote justice, and is obsessed with beauty, hair and style secrets.
This is not someone who's shy about being a public person.  But it's not just her.  After all, people put their own videos on YouTube. It seems as if everyone (except your humble author) is on facebook, and twitter.  Depending on the study, somewhere between 10 and 30 percent of teenagers have taken pictures of themselves at least partially nude and sent them off over their phones and computers to friends and even strangers.  And even I've got this blog.
So we live in this world where we're all on stage all the time.  We encourage that sort of thing.  And then marvel that someone takes a picture or a video and posts it online for the world to see.
But if we live in a world where everyone's private life is up for grabs, we also live in a world that is too often horrified by homosexuality.  Don't Ask, Don't Tell (and as someone recently wondered, has anyone ever been forced from the military for asking?).  Same sex marriage?  Fred Phelps and his venom spewing family from Westboro Baptist Church will be in the Supreme Court next week arguing that they have a First Amendment protected right to use the funerals of military personnel to attack support for gay rights.  (Disclosure, I represented Shirley Phelps-Roper in her partly-successful challenge to Ohio's prohibition on protests near funerals.)
It's hard to be a teenager.  It's harder still to be a teenager struggling with, or even discovering and reveling in your sexuality.  Harder still to be a teenager struggling with (or discovering and reveling in) you sexuality whose private struggles and (or) discovery are made public.
And yet, who could predict, if all of the above, that Tyler Clementi would take his life?  Even if Ravi and Wei wanted to embarrass him.  Even if they loathed him for being gay.  Even if it was something more than an offensive, ill-conceived, and frankly stupid prank gone bad.  And certainly if it was not.
There's so much more than what they did (if they did) to cause what he did (assuming he did).
Because there's plenty of blame to go around.  And Ravi and Wei, if they deserve any of it, have a wide array of others they can also point to.  If Clementi killed himself because video of him engaged in gay sex was made public, we (that's the societal we, again, not the personal one) have more than our share of blame.  To slough it all off on Ravi and Wei . . . we're letting ourselves off the hook way too easily.
One of the subjects I keep returning to on this blog is that criminal law isn't about righting personal offense.  Insofar as the law is interested in personal offense, it's tort law that shows that interest.  Criminal law is, as I've said repeatedly, about the harm done to the social fabric, to the body politic by criminal acts.
Tyler Clementi is dead.  If someone must pay, that's what torts is for.  And there's plenty of liability (not all of it legal liability, though) to go around.  But crimes?  Should Ravi or Wei really spend years in prison for capturing and showing, all without permission, Clementi having sex?  If they did it, it's wrong.  But years in prison?


  1. "Should Ravi or Wei really spend years in prison for capturing and showing, all without permission, Clementi having sex? If they did it, it's wrong. But years in prison?"

    According to the laws of the State of New Jersey, yes they should. I think your question is conflating the issue of culpability for Mr. Clementi's suicide with the underlying act for which these two have been charged - breach of privacy. The NJ legislature has criminalized the act they are accused of committing. Whether or not Mr. Clementi committed suicide as a result of the broadcast of his personal sexual conduct, that broadcast (if true) was a breach of law. The punishment for that offense is spelled out in the state statutes. Apparently, the people of NJ have drawn a line in the sand against breach of privacy. After all, in a world where people have less control over what others see, hear or read about us all, it makes sense that state laws would aim to protect those last vestiges of privacy that remain.

    Yes, Mr. Clementi's suicide was the genesis of these charges; however, the charges still stand or fall regardless of the tragic suicide that resulted.

  2. A couple of points in response.

    First, the fact that NJ statutes allow for years in prison for what it is alleged they did doesn't mean that they should serve years in prison even if they did it. There are lots of laws out there. The fact that they exist doesn't make them sensible. Nor should even the good ones always be applied in the most stringent and rigid ways possible.

    And yes, I do understand the distinction between responsibility for a death and invasion of privacy. But the calls (some literal and some metaphorical) for Ravi and Wei to be strung up by their respective reproductive systems are based on the presumption that they should be punished for Mr. Clementi's death. Loss and outrage are terrible bases for decisions about what criminal law should be/do/say. Tort law is a much better (not ideal, but better) legal mechanism for such things.

    And while I don't think anyone should go around broadcasting the sexual acts of anyone else without permission, I think that years in prison is an absurdly long sentence for an 18-year old who does such broadcast of adults. Is it wrong? Surely. But 5 years (which is what I've read NJ allows for it)? I think not.

  3. Hi Jeff - thanks for clarifying. Those are fair points, and I honestly do not know if five years is an "objectively" fair sentence or not. It is a tough issue, because I think a lot of this comes down to how one views the conduct with which they were charged. Personally, I don't view prison time as a bad thing (the length of the sentence aside), because I think breach of privacy of the degree alleged against Ravi and Wei is worthy of at least some criminal treatment. In the end, I suppose part of what determines if one prefers tort versus criminal liability for the conduct allegedly here just depends on how serious an objective harm one views gross breach of privacy.

    With that said, without a doubt you are correct that a lot of the calls for punishment in this case are based more on an emotional response to Clementi's death than the underlying conduct alone. Personally, I would like to see some of that outrage for similar privacy breaches that do not involve death or serious bodily injury. As I mentioned in my earlier post, there is something to be said to placing greater emphasis (and the weight of law) on protecting individual privacy in a society where people are losing control over what personal information is shared with the public.