from the giving-the-wrong-message dept
A few years back, we covered the Lori Drew case, involving charges brought against a woman who stupidly set up a fake user account on MySpace to try to find out what was going on with a girl the woman’s daughter had some issues with. The “fake account” was of a boy who the real 13-year-old girl became very friendly with. At some point, the “boy” turned on the girl, said some nasty things to her — including “the world would be better off without” her — and cut off communications. The girl committed suicide soon after. Lots and lots of people wanted Lori Drew brought up on charges for the girl’s death. While we found Drew’s actions to be incredibly immature and ridiculous, we were much more concerned with efforts to pin the suicide on her. Of course, the law wouldn’t allow such a thing, so prosecutors trumped up some charges, involving a claim that she committed a felony by not following MySpace’s terms of service. She was found guilty of a misdemeanor (not felony) charge — which was then dropped by the judge, who wasn’t comfortable with the ruling.
Of course, this did lead to a flurry of attempts to pass “cyberbullying” laws — which try to make it a crime of some sort to be a jerk online. This is problematic for a variety of reasons, especially since it raises significant First Amendment issues, in part because “being a jerk” is extremely subjective. But the worst part is that much of what is considered to be “jerky” behavior is determined after the other party commits suicide. This is extremely problematic — because whether or not your actions are seen as criminal depends almost entirely on how someone else reacts to them. If they shake off your actions, then you’re fine. If they commit suicide, you get punished. Thus, the incentive then is actually for kids to seriously hurt themselves, if someone acts in a mean way towards them, as that increases the likelihood of the bully getting punished. That doesn’t sound like a good incentive system.
I’m thinking about all of this after hearing about the guilty verdict against Dharun Ravi — the Rutgers student who surreptitiously filmed his roommate engaged in a sexual encounter with another male. That roommate, Tyler Clementi, later killed himself, once he found out about it being filmed. Like the Lori Drew case, much of the prosecution focused on the dead teenager — and you can understand why. It’s a horrible (and horrifying) story. But, again, the reaction is much more based on the end results, rather than the initial action. No doubt, what Ravi did was despicable, but is it really criminal? Law professor Paul Butler has an excellent opinion piece explaining why this is an overreaction. He notes that Ravi was clearly immature and did an obnoxious thing in invading his roommate’s privacy, but the desire to see him locked up (and apparently there’s a good chance he’ll be deported to India, despite not having lived there since he was 2 years old) is almost entirely because of Clementi’s tragic death:
Let’s be honest. A lot of people want a pound of flesh from Ravi because they blame him for Clementi’s death. Tyler’s reaction was tragic, and it was idiosyncratic…. No judge in the country would have allowed a homicide prosecution, because, legally speaking, Ravi did not cause the death, nor was it reasonably foreseeable. Of the millions of people who are bullied or who suffer invasions of privacy, few kill themselves.
For his stupidity, Ravi should be shamed by his fellow students and kicked out of his dorm, but he should not be sent to prison for years and then banished from the United States.
As Butler notes, the rush to the criminal justice system, and the focus on blaming Ravi, takes us away from a more reasonable place in thinking about how to deal with these things:
The problem with broad laws like New Jersey’s is that they come too close to punishing people for what they think. Bigotry, including homophobia, is morally condemnable, but in a free country, it should not be a punishable offense….
Ravi did not invent homophobia, but he is being scapegoated for it. Bias against gay people is, sadly, embedded in American culture. Until last year people were being kicked out of the military because they were homosexuals. None of the four leading presidential candidates — President Obama, Mitt Romney, Rick Santorum, Newt Gingrich — thinks that gay people should be allowed to get married. A better way to honor the life of Clementi would be for everyone to get off their high horse about a 20-year-old kid and instead think about how we can promote civil rights in our own lives.
Though a national conversation about civility and respect would have been better, as usual for social problems, we looked to the criminal justice system. The United States incarcerates more of its citizens than any country in the world. We are an extraordinarily punitive people.
Indeed, as tragic as Clementi’s death is, it did inspire thousands of people to act in a positive manner against homophobia by launching the It Gets Better project — a very powerful way that tons of people have gathered to try to pass along the message to bullied teens (mainly from the LGBT community) that things do, in fact, get better. That response is a way of trying to deal with the actual problems. Going after Ravi with these charges just seems like a punitive action based on what Clementi did after Ravi’s clearly childish and obnoxious actions. It certainly can be difficult to separate out what Ravi did from what Clementi did later, but in a society based on law, that’s what we’re supposed to do. Being a jerk should get you shunned, but not put in prison.