One thing must be admitted off the top: we don’t know why Tyler Clementi committed suicide. Even if you actually knew Clementi, which you don’t, you don’t know what was going on in his head. If you did, you would have stopped him, but you didn’t. And if you didn’t know him, and you didn’t, you have no idea what made him commit suicide.

You may believe it was the humiliation caused by Dharun Ravi’s outing him as gay in their Rutgers dorm, but that’s just a belief that can neither be proven nor disproven. You don’t know. I don’t know. Nobody knows. If you can’t admit this, then there’s nothing more to discuss.

But Dharun Ravi was convicted of a laundry list of crimes, none of which involved Clementi’s death. But they were all a proxy for Clementi’s decision to commit suicide, because of how Ravi’s actions made Clementi feel.

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.

The New Jersey Appellate Division reversed Ravi’s conviction, four years later mind you, following another decision holding their bias crime statute unconstitutional.

After Ravi’s conviction in 2012, the state Supreme Court in a separate case struck down part of the state’s bias crime statute that focused on the victim’s state of mind. According to that case, it is the defendant’s state of mind and intent that is important, not the victim’s.

The offenses directly related to the unconstitutional statute had to go, as even the prosecution conceded, but the appeal to emotion based upon the speculative feelings of Clementi, who couldn’t be there to testify about them because he had committed suicide, poisoned the jury.

The State used evidence revealing the victim’s reserved demeanor and expressions of shame and humiliation as a counterweight to defendant’s cavalier indifference and unabashed insensitivity to his roommate’s right to privacy and dignity. The prosecutor aggressively pressed this point to the jury in her eloquent closing argument.

It is unreasonable to expect a rational juror to remain unaffected by this evidence.

Given the pervasive belief that the impact of words or conduct on another person, usually characterized as the “victim” or “survivor,” is the most important element of a crime, everyone, from journalists to politicians to scholars, keeps pounding away at how no one should be able to hurt someone else’s feelings.

Sit down, I have something to tell you and it’s going to make you sad. This is not true.

While the resultant objective results of conduct may serve as an aggravating element of a crime, such as whether the bullet found its mark (murder) rather than missed (attempted murder), crimes are based upon conduct committed by the perpetrator. Crimes are constructed of elements, which are within the perpetrator’s ability to “control,” to the extent a person makes a decision to engage in conduct that is prohibited.

What crimes are not is conduct which is either lawful or unlawful based upon how a victim feels about it. If this were so, then no one would know what conduct is criminal, as it would be contingent on how another person feels, what goes on in another person’s head. Are they particularly fragile? Are they unduly sensitive?

Some offenses resort to what’s construed as an objective “reasonable person” standard, as whether a reasonable person would be hurt and offended by the conduct, and whether the person committing the conduct knew or should have known that it would produce that hurt or offense. It’s a terrible metric. Not only is there no “reasonable person,” but what it does is create crimes based upon a judge’s or jury’s sensibilities, because they are, naturally, reasonable. So if it offends them, it’s offensive.

This flies in the face of the lessons of social justice, that words can hurt “as much as, if not more” than a punch to the face. While that’s a disputable contention, it also presents a problem of proof. A punch to the face can be objectively proven. Hurt feels are whatever someone says they are.

But more to the point, it criminalizes people for having unacceptable thoughts and feelings. Let’s assume, arguendo, that Ravi hated gays. So what? You may feel he’s a terrible person for holding horrible feelings, for being discriminatory against a marginalized group and being a really bad human being. But that’s not a crime. People are allowed to hate whomever they hate,* including you, who hates haters.

The charges that have not been dismissed may yet be retried. How a trial will fare without the emotional appeal of Tyler Clementi’s feelings is a mystery, but as much as this may have been hurtful, his feelings are not an element of the crime. They have no place at the trial.

*I know, but they are, bad as that may be.