Citing my comments on last week's verdict in Dharun Ravi's "bias intimidation" trial, Kenneth Jost, Supreme Court editor at CQ Press, notes that "libertarian and conservative critics" (progressives too) complain that hate crime statutes "infringe on freedom of expression" (as well as freedom of conscience), although such arguments have been rejected by the Supreme Court. Jost says Ravi was "found guilty of anti-gay conduct," not anti-gay views. That is partly because he does not seem to have harbored anti-gay views, as I pointed out last week and will discuss further in my column tomorrow. In any case, Jost argues that "Ravi was rightly held responsible for making his roommate feel vulnerable to all the harm that anti-gay prejudice can bring about" by "singling out Clementi as different…because of his sexuality." To my mind, this emphasis on Clementi's (presumed) feelings, rather than Ravi's intent, is one of the case's most troubling aspects.
Jost notes that Ravi faces up to of 10 years in prison but seems to think that would be excessive. Michelangelo Signorile says so explicitly, while defending the verdict:
I don't want to see Ravi deported, nor getting a ten-year prison term, the maximum sentence for his crimes. But the bottom line is that Ravi was offered a plea deal in which he would have avoided jail time as well as deportation. Instead, he and his legal team put faith in what they thought was a homophobic judicial system, one that would slough off hate crimes against gays—as it had so many times in the past—and once again validate the "gay panic" defense, which in this case was dressed up as the "teen prank" defense.
That's one way of looking at it. Or you could say Ravi refused to plead guilty, even though it would have kept him out of jail and (probably) in the country, because he did not think he had committed a hate crime. As Ravi's father told Newark Star-Ledger columnist Mark Di Ionno right before the verdict:
There is a principle here. My son was not raised to have hate in his heart. We are not hateful people. My wife and I are not like that. We have not raised our family to be like that. I know my son, and he is not a hateful person. Whatever he did to Tyler was not out of bias toward him.
In a CNN essay, George Washington University law professor Paul Butler, a former federal prosecutor, argues that people see Ravi as an anti-gay bigot because they assume his webcam spying drove Clementi to suicide:
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. It is possible to deeply mourn Clementi's death and also to acknowledge that he probably had issues other than Ravi. 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.
Citing Butler at TechDirt, Mike Masnick compares Ravi to Lori Drew, a middle-aged woman who was blamed for driving a 13-year-old girl to suicide by creating a fake MySpace persona that befriended her before turning on her. Because Drew had broken no laws, local prosecutors in Missouri declined to charge her with anything (imagine that!), but that did not stop federal prosecutors in California from trying to lock her up for violating MySpace's terms of service. "Punishing people based on others' suicides is a mistake," Masnick says, "because whether or not your actions are seen as criminal depends almost entirely on how someone else reacts to them." Furthermore, "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."
For more on the constitutional case against hate crime laws, see my 1992 Reason feature "What's Hate Got to Do With it?" and my 2007 column "Looking for Hate in All the Wrong Places."
[Thanks to Hans Bader for the Jost link.]
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