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Legal Fallout from the Rutgers Verdict

Does dumb-kid defense no longer work?

17

The “jerky kid” defense is dead. Long live the jerky kid defense.

So declare lawyers interviewed by the New York Times after last month’s conviction of former Rutgers student Dharun Ravi for using a webcam to spy on his gay roommate with another man. The roommate subsequently killed himself. The verdict, argues these legal minds, repudiates the idea that a defendant’s youthful naiveté and foolishness could be used as a defense.

Objection, says David Breen (LAW’90). The School of Law clinical associate professor says it’s too soon for sweeping pronouncements about the legal fallout.

After Ravi trained a webcam on his roommate Tyler Clementi kissing another man, and tweeted about it, Clementi leapt off the George Washington Bridge. The jury convicted Ravi not only of invasion of privacy, but also of bias intimidation, raising the prospect that hate crime laws could be applied to cyberbullying and computerized spying, the Times reported. Some critics, meanwhile, argue that hate crime legislation improperly criminalizes thought.

Breen has seen the law from the perspective of teacher, prosecutor (he worked in the Manhattan DA’s office in the 1990s), and victim (he was nearly killed by a gunman during a robbery in 1991). BU Today asked him for his take on the Ravi verdict.

BU Today: Do you agree with the rationale for hate crime laws?

Breen: There are groups that have been targeted over the years for hateful and criminal actions—people of color, people from different countries, gays and lesbians. The purpose behind these laws wasn’t to criminalize thought or speech, but to give enhanced penalties when the motives behind the crime were due to hate. You rarely see a unanimous Supreme Court, but in 1993, they said you can look at the motive behind the actions. I understand the concern that you’re punishing thought or speech, but you’re actually not. And actually, they are harder cases to prove.

Do you think the verdict in the Ravi case was sound?

The jury gave serious thought to each of the elements. I’m loath to hear people pontificate when they didn’t sit as a juror. From news accounts, it sounds like they were very careful.

One reporter described it as a landmark decision. Do you agree?

I think you need to be careful of hype. Some people thought that this was going to be a not guilty, because “boys will be boys.” I wonder if this is a generational issue. We have young people today who live in a video age, where every thought should be put on the internet. I wonder if this verdict will give people pause, an understanding there maybe should be some boundaries in our lives. If it was a jury consisting of college kids, the result might have been very different.

There’s no way to get around that this was an invasion of privacy. The facts are pretty bad for the defense. The defense did argue that there really wasn’t a motive, that it wasn’t a hate situation, but was just him being a jerk, and kids will be kids. This particular jury didn’t buy that. It certainly undercuts the argument for future, similar cases; I don’t know that we’ll never see that again. The gay-panic defense [a generally unsuccessful argument that it was out of fear that a defendant attacked a gay victim who propositioned him] we saw for years.

The reason the kids will be kids defense might not work now is because you have a jury pool that looks at this particular behavior and says, that’s pretty egregious. Depending on where we go culturally, it might be that these types of crimes are impossible to get convictions on, because there might be a sense that we have no privacy anymore. As people become older, and they have grown up in this culture of video chat, it might be seen to them that there is no realm of privacy. We’re not there yet.

You think it’s premature to judge that the dumb-kid defense is dead?

I do. I don’t think one case makes for a trend.

Will the Ravi conviction bolster the number of hate crime prosecutions and the legal case for them?

It’s hard to say. Every state has different laws. I feel like this was a fairly unique case. It may serve as a notice to people who might have bias motives. Maybe they’ll refrain from doing things. It’s one thing to invade your own privacy and put your own actions on YouTube. It’s quite another to do it to someone else.

17 Comments
Rich Barlow

Rich Barlow can be reached at barlowr@bu.edu.

17 Comments on Legal Fallout from the Rutgers Verdict

  • Patrick Maruska on 04.06.2012 at 9:05 am

    I was confused by your first line. “The ‘jerky kid’ defense is dead. Long live the jerky kid defense.”. “The X is dead. Long live the X.” is a snowclone of “The king is dead. Long live the king.” The phrase means that something is gone, being replaced by basically the same thing. The implication of this line means that the “jerky kid” defense is gone, but it has been replaced by a different kind of “jerky kid” defense. This does not makes sense in this article, where there is no reference to a replacement of the “jerky kid” defense. I believe what you meant to say was just “The ‘jerky kid’ defense is dead.”

    • Jerky Kid on 04.06.2012 at 9:49 am

      I was confused by your use of the term “snowclone.” I believe what you meant to say was “snow globe.”

      • Patrick Maruska on 04.07.2012 at 2:46 am

        No. A snowclone is a type of cliche that has easily replaceable sections. Like “To X or not to X”, “Got X?”, and “X-gate” (as in Watergate).

    • Don Hungus on 04.06.2012 at 10:08 am

      snowcone defense in 1988 torny v. bungler??

      • Patrick Maruska on 04.07.2012 at 2:47 am

        SnowCLONE not snowcone.

        • Nedia Hamoudi on 11.04.2012 at 11:14 pm

          I think you meant to say OZone.

  • R M Evans on 04.06.2012 at 10:26 am

    Breen says, “The jury convicted on some counts, but acquitted on others.” It is my understanding that the jury convicted on ALL counts. Breen may not have his facts clear here.

    • Rich Barlow on 04.06.2012 at 10:41 am

      We’ve corrected the story. Thanks for alerting us!

      • ummmm on 04.06.2012 at 5:20 pm

        Ummm, how can you get such a major point wrong in your story?

  • Sam Stone on 04.06.2012 at 11:02 am

    To pile on, the article has this sentence: “After Ravi trained a webcam on his roommate, Tyler Clementi, kissing another man and tweeted about it, Clementi leapt off the George Washington Bridge.” I believe you moshed the two offenses into one. As I understand it, Ravi, and a hallmate, Molly Wei, used iChat between a webcam on Ravi’s computer and a computer in Wei’s dormroom to view Clementi kissing another man. Ravi later unsuccessfully attempted to view a sexual encounter between Clementi and another man, while making Twitter postings to followers, and sending private messages to friends.

    The facts are easily “googled” and, frankly, there is no excuse for the factual errors in this article. With that said, all of the major newspapers in this country are guilty of the same fact-checking foibles on a near-daily basis.

    Although admittedly just my opinion, Clementi jumping off the GW bridge because someone tweeted about his intimate encounter with another man, and had seen video of him kissing another man, is more demonstrative of Clementi’s “issues” than Ravi’s immaturity. Ravi may have prematurely lit the fuze but Clementi’s emotional bomb was already set to detonate.

  • AP on 04.06.2012 at 11:29 am

    The bigger problem in this case is that there are tons of psychologically fragile kids with undiagnosed issues living in dorms, with other young teenagers expected to accurately identify “mentally ill” from “strange personality,” to correctly refer their classmate for services, and to automatically know the right way to address someone who is psychologically fragile. To compound this, residence life staff simply can’t have a close enough relationship with each student to be able to tell the difference, either, in every case.

    In my freshman year in Warren Towers, I knew of 5 such kids, so it definitely happens at BU. Anything can trigger someone to lose it, and it simply shouldn’t be the trigger’s fault for not being able to gauge where an individual with a low tolerance’s trigger lies.

  • william sirkel on 04.06.2012 at 1:30 pm

    “The jury gave serious thought to each of the elements”
    The jury thought what Ravi was thinking was a crime? How would they know what Ravi was thinking and when he was thinking it. UNREAL

  • StupidCase on 04.06.2012 at 3:40 pm

    This article is completely wrong. Where are you getting your sources from?

    There was no posting to YouTube. That’s the only part I read but I assume you have many more mistakes.

  • Jersey Mom on 04.06.2012 at 4:01 pm

    The whole article was a waste of time. The guy has nothing original to contribute and doesn’t even have the facts of the case correct. Somebody looking for something to fill up space.

    As it happens, the jury DIDN’T try to mind read Dharun Ravi (he was acquited of intending to intimidate Clementi). They tried to mindread CLEMENTI (a dead guy) which one juror said was “very difficult” to determine that he FELT intimidated (which is the element they convicted for).

    Read the actual case and then say something of interest.

  • Jan on 04.06.2012 at 4:02 pm

    Actually, Patrick Maruska used “snowclone” correctly. It was an unfamiliar term to me, and I’m glad to learn it.

    To respond to Stone, AP, and others here, no one expects college students or really any members of the general population “to accurately identify “mentally ill” from “strange personality,” to correctly refer their classmate for services, and to automatically know the right way to address someone who is psychologically fragile.”

    But we do and should expect people to treat each other civilly. How can it not be clear that mocking (in however limited a circle) another person about behavior that they feel deeply conflicted about is cruel thing to do? Whether the person mocked is fragile or not, reacts in an extreme way or not, this is behavior that a civilized society should not sanction, and should I believe actively punish. The sooner that cyberbullying and videotaping people without their permission are recognized as crimes the better.

    • ash on 04.06.2012 at 10:50 pm

      amen!

  • Doug1 on 04.06.2012 at 4:35 pm

    I think the conviction on some of the hate intimidation charges was very unjust. However I think the main problem is the fine print of that law in New Jersey.

    I really see no evidence that Ravi was trying to intimidate Clementi or was acting out of hatred for him in using his web cam on his own computer to briefly spy on him after Clementi had brought a considerably older and according to Ravi sketchy looking man into his room. I think it was more like curiosity, yes of a kind of immature and jerky variety.

    Really Ravi was tried and had so many charges brought against him was because Clementi killed himself three days later. Yet we really don’t know why he did or how much if much Ravi’s outing him as gay contributed to that. Clementi wasn’t even really all that closeted about being gay.

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