…then we would all be incarcerated. Superior Court Judge Glenn Berman sentenced former Rutgers student Dharun Ravi and target of anti-gay, anti-bullying activists following Tyler Clementi’s suicide. From the Star-Ledger :
Superior Court Judge Glenn Berman shocked the New Brunswick courtroom Monday when he ordered Ravi to spend 30 days in jail, departing from established sentencing guidelines that called for up to 10 years in state prison. Visibly upset with the sentence, First Assistant Prosecutor Julia McClure immediately told the judge she would appeal.
In addition to 30 days jail, the judge sentenced Ravi to three years probation and told him to contribute $10,000 to a state licensed community based organization dedicated to assisting victims of bias crimes. Berman also said he would recommend Ravi, who has lived in this country most of his life but is not a citizen, not be deported to his native India.
Wails were heard across Middlesex County. Curiously, the judge did not impose the presumptive ten year sentence of imprisonment because he did not believe Ravi was biased against gays :
Superior Court Judge Glenn Berman got it exactly right yesterday when he said Dharun Ravi acted not out of hate, but of “colossal insensitivity.”
There was never any clear evidence of [hatred]. And Ravi shouldn’t be held responsible for Clementi’s death. We’ll likely never know why he leapt off that bridge, yet it’s the political fury at the suicide that put Ravi in this position.
For all the heart-rending by those whose goal is to put an end to hurt feelings, this sentence presents a conundrum. There must be consequences so that their agenda is taken seriously, enforced by a penalty of sufficient severity that they can impose their perfect world of happy feelings on others. At the extreme:
One Columbia law professor even suggested he showed “the same disregard for human life” as someone guilty of vehicular manslaughter, as if texting while driving were in any way comparable. In that case, we know who caused the death. Here, we have no idea. Clementi left a suicide note, but authorities have refused to release it.
Yet most anti-bullying adherents are not so mindless as to seek a sentence so harsh as to destroy Ravi’s life. Even the confusion as to the connection between Tyler Clementi’s death and Ravi’s act distracts from the problem. If there was proof that Ravi’s conduct precipitated Clementi’s suicide, the outcome doesn’t change the intent of the act that precedes it. Of course, people (including lawprofs) have great difficulty grasping this concept.
The problem now is that they are forced to come to grips with the reality that there is a huge difference between those who engage in violence toward others and those who show “colossal insensitivity.” The problem is that many people show “colossal insensitivity,” whether toward gays, or women, or Catholics or someone else. If pushed, one might call this a truism of humanity, that we are all insensitive toward someone else in the course of a lifetime.
Most of us are insensitive fairly on a regular basis. How insensitive, whether colossal or just regular, is a matter of opinion. If you happen to be on the south end of insensitivity, chances are you will feel it’s far closer to colossal than not.
What are the chances Ravi meant to do harm to Clementi when he streamed the video of his roommate making out? What are the chances Ravi considered the impact of his conduct? Pretty slim. Of course, the lack of thought or insight into the commission of a criminal act is hardly an excuse. If “I didn’t mean to cause harm,” was an acceptable excuse, there would be far fewer people convicted and far more people harmed.
But this case goes into relatively new territory based on the anti-bullying fad, where the new happy order is that the crime is to hurt another person’s feelings and the myth is that it’s no different than a punch to the gut.
The sentence imposed is hardly insignificant. Time in jail, even a day, is significant. The $10,000 means something. The 300 hours of community service is nearly two months of work. Plus, there’s a college education lost, as well as a future of dubious expectations. All because of colossal insensitivity.
While Judge Berman’s sentence shows substantial thought and restraint, compared with what it could have been given the cries for blood, it would have sufficiently served the purposes of sentence had it been limited to either the 30 days in jail or the 300 hours of community service. Requiring a college student to pay $10,000 to a private organization whose purpose is to further a political agenda makes no sense at all, either from a financial or legal perspective. Imposing all these components of a sentence is overly harsh and disproportionate to the conduct.
But if Judge Berman meant what he said, that this was not a matter of hatred but merely “colossal insensitivity,” then he should have tossed the verdict altogether. Despite the advocates of government compelled “sensitivity,” it makes a criminal of all of us.
We need to stop kidding ourselves that we can criminalize insensitivity and eliminate it from the human condition. We need to toughen up and shrug off an unkind word and insensitive act rather than demand the perpetrator of our hurt feelings go to prison. We cannot build a world of perfect self-esteem on the back of the criminal justice system. Or we will need to build a lot more prisons to house all of us.
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So the state can appeal this, but not the Chad Holley case. This seems strange to a n00bie-doobie like me!
The state can appeal the sentence imposed by the judge following the jury verdict of conviction. In Chad Holley, the state cannot appeal the jury verdict of acquittal. Different things entirely. The law is like that, distinguishing between different things that seem oddly, remotely, almost kinda the same except they’re completely different.
In Chad Holley it was appeal of evidentiary rulings we were discussing. I thought those are made by the judge (although not that familiar with TX law).
Well done, SHG. But are we criminalizing insensitivity itself, or only when the “victim” cannot handle it without going to pieces? As I recall, negligent homicide is a crime because the consequence, not the criminal’s action, is abhorrent.
What part of there having to be a final judgment of conviction before there can be an appeal is not getting through to you? The Constitution has this double jeopardy clause in it, which precludes revisiting a prosecution after an acquittal by a jury. That’s the end of it. No mulligans. Case closed.
In the future, if you have questions about the most simplistic aspects of criminal law, please don’t burden the comments with your questions. Get a crimlaw hornbook, read it, figure it out. Considering the fact that you’re a lawyer, you are seriously dumber than dirt.
Dude videotaped him in the privacy of his bedroom when he thought he was alone. Clementi had a very high and reasonable expectation of privacy, and Ravi didn’t care. What Ravi did wasn’t just “hurting someone’s feelings”; he engaged in conduct that has no worth and should be sanctioned. It would have been just as much a crime if he was taking video of girls in a gym shower room at the local Y.
You are correct in a number of ways: Had Tyler Clementi not committed suicide, this entire “crime” would never have been known, no less prosecuted. Because of the suicide, which may be assumed to be the “straw the broke the camel’s back,” though it’s cause will never be known, it’s become a cause célèbre.
And you are similarly correct that negligent homicide is an outcome crime, without regard to mens rea, and therefore just as irrational to criminalize as insensitivity. If the conduct can’t be sufficiently identified to give notice to prevent it (you can’t prevent an “accident,” which by definition isn’t intentional), the outcome, no matter how horrible, doesn’t make the prior conduct any more or less wrong. My belief is that negiligent homicide is another “crime” that should never be.
Crimes are meant to prevent people from engaging in specific conduct, not preventing unanticipated outcomes, whether hurt feelings or accidental death.
Your analogy to videotaping girls in a shower room is off base, much as comparing a guy punching another guy to raping a woman. Both are unconsented touchings, but the latter is of a magnitude far more heinous and certainly conduct clearly understood to have transgressed boundaries into the realm of crime. Yet even videotaping girls in a shower room wasn’t a crime until relatively recently.
That said, invasion of privacy happens all the time without it being deemed criminal. What if Ravi, knowing Clementi was in the dorm room with another guy, decided to walk in on them with his friends? It was Ravi’s room as well, and Clementi had no greater right to the room than Ravi. It was just a matter of roommate courtesy. To the extent there was a harm done, why not a tort rather than a crime? Why not damages rather than sentence?
To drive this point home, when the police unlawfully break into your home and invade your privacy, the sanction is suppression of evidence if you’re charged with a crime, and only under the rarest of circumstances, potential monetary damages for a civil rights violation. But no crime.
It’s not different in magnitude, it’s highly analogous. A guy was charged here quite recently for taking video of a girl he was renting a room to while she was in the shower. Either way, it’s abuse of shared space to invade into a time and place when someone can very reasonably expect to be alone.
The difference between Ravi walking in and videotaping whatever was going on is that Ravi had a right to walk in. It’s his room too, and Clementi should have expected that’d be a possibility. It being a shared room doesn’t authorize him to videotape Clementi’s intimate activities. Clementi thought he was alone with this other man, and in thinking he was alone, presumably did things he would not have done had other people been around. Ravi exploited that mistaken belief to get some candid film; pretty clearly distinguishable from just walking in.
As to why a crime and not a tort, because it’s morally reprehensible conduct that’s without worth and should be deterred by sanction.
There’s policy reasons why the cops shouldn’t be held accountable for searches that are held to be unreasonable after the fact. But if it could be shown beyond a reasonable doubt that they knew they were not executing their lawful duties and that they intended to invade your privacy, why shouldn’t that be sanctioned?
Obviously, you think better of your analogy than I do.
I think your analogy is flawed because it gives Ravi too much credit: peeping is wrong, but there’s no malicious intent. Ravi’s intent was entirely malicious. An “insensitive” person doesn’t give you slack the day after your grandmother died. A malicious person secretly films you having sex and broadcasts it on the internet.
Ravi wasn’t a nine-year-old when this happened. He was old enough to vote, to go to war. He was old enough to recognize the difference between playing a prank and broadcasting his shy roommate’s sex scene to the world.
Whatever happened to personal responsibility? I’ve gone my whole life without ever secretly filming someone else’s sex life and inviting others on the internet to watch. I assume most people have. If you do something malicious to hurt people, and it succeeds even better than you planned, you pay the consequences.
So Ravi was maclicious because you went through your “whole life without ever secretly filming someone else’s sex life?” Is this the new criteria for crime, things Max never did?
I still think you’re missing the forest for the rainbow coloured tree. Whether he intended to cause harm or was just reckless to the possibility, whether he did it because he hated Clementi for being gay or just thought it’d be funny, or whatever else — all factors for sentencing.
Is it seriously your position that hiding a camera to watch someone else having sex without their consent or knowledge shouldn’t be criminal?
If he lacks criminal intent, yes, that’s my position.
Thank you! Colossal Insensitivity will be I toss them out or refuse to give them privacy or vocalized by opinion about how homophobic I am. But to say yes I give you privacy and broadcast a private moment of someone Ravi himself described as “Shy” is not hurtful-it shows he he was intent on delivering the crushing swing on purpose.
So it’s like he pulled the trigger himself? You are very sensitive. Not as sensitive as Max, but very sensitive.
Actually it turns out that interlocutory appeals are allowed in Texas in criminal trials for the suppression of evidence (see Texas Code Of Criminal Conduct Article 44.01). So you may want to correct your comment that is inconsistent with that.
Article 44.01 does not help the state in the Holley case, but the truth is NOT as simple as “there are no interlocutory appeals in criminal cases.” Because there are. At least in Texas.
A rational person would say that crimes are meant to prevent conduct; an observer will note they are also used to satisfy lust for vengeance and longing for security.
I agree with you. Nevertheless, I am reminded of a story I heard in which a young scholar’s essay drew this professor’s comment: you seek better bread than is made from wheat.
I admire your blog and have recommended it to law students.
Yes, an adverse suppression ruling is independently appealable, but it’s (again) different from a trial ruling and appealable because it precludes the evidence from trial and doesn’t implicate double jeopardy. This is all routine stuff for CDLs, and just because you have no clue about criminal law isn’t a good reason why you think I’m supposed to teach crimlaw for dummies here.
Your statement (“no such thing as interlocutory appeals”) was incorrect.
I am not the one who should be embarrassed here.
Yes, you’re right. Every time I answer one of your mind-numbingly stupid questions, I will provide a dissertation on exceptions that every criminal defense lawyer already knows. You are the center of the universe. I am deeply embarrassed by stating the rule and omitting an irrelevant exception.
Do you see how much of my comment space is dedicted to your question? Do you wonder why it’s not as fascinating to anyone else as it is to you? Do you wonder why no other lawyer seems to have the difficulties understanding basic concepts of crimlaw? Seriously, lurk all you want, but stop commenting. If you want to learn crimlaw, go back to law school or better still, get a job with LAS, but stop wasting my bandwidth on this nonsense.
I don’t really understand how one can equate ‘FREEDOM’ with being a shitbag to another human being, mostly because I’m not a shitbag and treat others with respect. So I’ll leave that point of contention alone.
I had always been under the impression that acts of witness tampering and the destruction of evidence were serious crimes, however. One would think they’d be seen to directly undermine the justice system but I’m happy to learn something new everyday.
So I close with, “Be free little Ravi! Be the shiny cunt you were always meant to be. This too shall pass, in thirty days no less.”
Nobody’s giving Ravi a medal for what he did. But there are lots of “shitbags” around who are less than respectful to others. My guess is at some point in your life, someone thought you were a shitbag too, even though you may not think so. You ready to do your 30 days? It’s only 30 days, and it will pass.
Dude, you really are a dumbass. Seriously.
It’s difficult to draw fine distinctions. And it’s easy to sometimes close one’s eyes tightly, stop worrying so much and let the difficult case go. But it’s the difficult case that tests us.
Not really concerned with him being a shitbag, that ship has sailed. However, amongst the thirteen counts he was found guilty on were witness tampering and destruction of evidence.
I had always thought those types of charges would merit more than thirty days in the klink. I was wrong. I learned something, and hey, that’s pretty swell.
If you think ‘the freedom to call you faggot’ is liberty or whatever, that’s cool bro. Rock on. My point of contention was solely with two other counts on the charge sheet. I only thought cops got away with that sort of thing, and barring lil’ Ravi Putt-Putz vocabulary, he shares little in common with them.
Your point about the witness tampering is well taken, but not quite what makes this case controversial. Generally, when defendants try to cover their butts, it’s not viewed as quite the same as when done by anyone else, and it’s almost never more serious than the underlying crime, which makes a great deal of sense.
As for your issue with “liberty” and “freedom,” you may not be getting the point. It’s not that it’s okay, good, fine or otherwise. It’s not an issue of liberty or freedom at all. It’s an issue of what to criminalize. There are plenty of things that are bad, and people shouldn’t do them, and if they do, they deserve our anger, disapproval or disdain. That doesn’t mean we should put people in prison for them.
We find ourselves less and less capable of condemning indecent behavior without grabbing for the screwdriver of criminal law, pretending that the entire world of problems and moral dilemmas is a screw.
I find the defendant’s conduct reprehensible and I would not want to associate with such an individual, ever. But I just don’t see him as criminal. I hope that the young arrogant dirtbag appeals.
Yes. Exactly.
I’m curious as to what good people think it would do to throw Dharun Ravi in prison for ten years of his life? Are we back to pretending that our prison system rehabilitates people?
Our prison system, as it stands currently, does not reform people. If Ravi spends a decade in prison, there is every probability that he will leave prison as a shell of a human being, made anti-social, apathetic, and emotionally damaged by the dehumanizing brutality he will experience while incarcerated. Since he’s a young male, he will be at extremely high risk for being raped. Repeatedly. And if he survives this ordeal, when he gets out, assuming he’s still capable of functioning in society, he would (if I understand his charges correctly) still be a convicted felon. Future employers will be able to legally discriminate against him. If he has trouble earning income, he will be denied access to public housing and food stamps. All of which means that, unless his family is willing to support him, he will end up homeless. All of these factors make it more likely he will resort to criminal behavior to make ends meet, which will land him right back in prison. Trust me. The felony conviction alone is enough punishment. It will taint everything he does for the rest of his life, and prevent him from living out whatever dreams he may have had prior.
There is no evidence that Ravi intended to kill his roommate. Nor is there any evidence that he intended to make his roommate harm himself or cause his own death. The law provides a remedy for the behavior that Ravi participated in: it’s called I.I.E.D. And there is a reason that it’s a tort, and not a criminal sanction.
If you believe that anything human remains in Dharun Ravi, then sending him to prison for a decade of his life is the last thing you want to do to him. Prison turns people who’ve made bad decisions into actual criminals. Tyler Clementi’s suicide is a tragedy. But not every tragedy needs to be corrected by inflicting immeasurable suffering on the person responsible. That is exactly what will happen to Dharun Ravi if he is sent to prison for 10 years of his life. That is what supporting harsh sentences entails.
Ravi expressed unprovoked remorse to Clementi before he committed suicide. He’s not the evil, unrepentant monster people are making him out to be. But he will resemble one if we put him through the hellish experience that awaits him in prison. That’s not justice. It’s blind retributiion.
What good do people think it would do?
Deterence, punishment (vengeance if you like), those are two.
You’re dodging the point, of course.
Ravi intentionally did something cruel and malicious. If we’re going to discuss criminality and punishment seriously, then we must begin with that indisputable fact. Pretending otherwise — like saying he was merely “insensitive” — discredits your own argument.
Max, the judge said it was “colossal insensitivity,” not me. Remember, you can take extra time reading here so you can get it right. I would use smaller words, but it’s a quote and I can’t change them to accommodate your challenges.
As to it being “cruel and malicious” because Max says so, that’s neither a point nor an argument. Consequently, no point to dodge.
So less than 10 years won’t quench your lust for vengeance?
Hmmph. Cops destroy evidence and tamper with witnesses all the time. It’s a “man bites dog” story when one is actually prosecuted.
Not that the punishment is ever meaningful with that shiny “get out of shit free” talisman on their chests.
And it won’t fetch much in the Nantucket market…
I don’t buy the distinction you are trying to make with regards to malice and intent.
Its pretty safe to assume that the creep filming women in the shower is doing so for the purposes of sexual gratification. If he then posts those secret videos online he does so without regards to the feelings of the women whose privacy he violated. One may also reasonably argue that such actions demonstrate malice towards women as a class. Thus, would still at least arguably be malice present in the creep filming women in the shower.
If you are trying to make the point that Ravi acted intentionally to harm another specific person a better comparison to what Ravi did would be a man who posts the sexy photos that an ex-girlfriend sent him online for other men to gawk at. Of course, there is a difference in that the woman in that case originally voluntarily provided the photos – but the public relesae is still motivated by malice.
That is a different matter from video voyuerism. Video voyuerism – which Ravi would arguably be guilty of depending upon the precise language of the statute – is a crime regardless of the voyuer’s motive. It punishes action rather than thoughts.
The intentional release of private information is already protected by the tort of invasion of privacy and false light. To punish releases of videos of another engaging in sex act differently based upon its motive is really punishing thoughts rather than actions. That also leads to issues about whether it would be criminal for someone to forwards photos or videos that were originall voluntarily supplied. Those actions – while being “colossally insensitive” seem better punished by tort law – otherwise there might be criminal liability for someone accidentially forwarding sexy photos of another.
I wish I hadn’t but I’m seeing comments elsewhere suggesting that Ravi should have gotten the full 10 years and been raped every single day of them. Then deported.
I think the ‘woman scorned’ has been trumped.