How Dharun Ravi's Prosecutors Turned a Minor, Nonviolent Offense Into a Felony Subject to a 10-Year Prison Sentence

Yesterday, as Ed Krayewski noted this morning, Dharun Ravi 's lawyers asked a judge to throw out his convictions for spying on a romantic enounter between his Rutgers University roommate, Tyler Clementi, and another man. As I've said before, it is unlikely that Ravi would have been arrested at all if Clementi had not committed suicide a few days later, although he was never officially accused of contributing to Clementi's death. Still, Ravi may be guilty of one charge: fourth-degree invasion of privacy. Here is how that offense is defined:

An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person's consent and under circumstances in which a reasonable person would not expect to be observed.

Using a webcam to watch a few seconds of Clementi kissing his visitor seems to fit that definition. Although the webcam was in the room that Ravi shared with Clementi, he agreed to give his roommate privacy, then surreptitiously observed him on a friend's computer across the hall. Ravi claims he set up the webcam because he was worried that the visitor might steal his property and did not expect to see him making out with Clementi. But even if we reject that excuse, this crime is punishable by up to 18 months in prison and a $10,000 fine, meaning no time behind bars is a distinct possibility. To threaten Ravi with serious prison time, the prosecutors had to pile on some much more dubious charges. To start with, they said the same incident constituted third-degree invasion of privacy:

An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.

Ravi never recorded what was going on in his room, and it's debatable whether watching via a webcam amounted to "reproducing" those images. In any case, as his lawyers noted in their motion yesterday, the images did not include exposed "intimate parts" or sexual penetration—only kissing. But if you overlook those objections, what Clementi called Ravi's "five sec peep" is now punishable by three to five years in prison and a $15,000 fine.

The prosecutors still were not through. They argued that Ravi's invasion of privacy was also an act of "bias intimidation," which kicked it up another notch. Now we are talking about a second-degree crime, punishable by five to 10 years in prison and a fine of up to $150,000. That is the penalty Ravi faces "for being a jerk," as New York Times columnist Bill Keller put it last month.

Yet the jury did not find that Ravi spied on Clementi "with a purpose to intimidate" him "because of" his "sexual orientation," which would fit the main definition of bias intimdation. Instead it went with an alternative definition, concluding (based on thin evidence) that Clementi felt intimidated and "reasonably believed" that was Ravi's purpose. In other words, Ravi's guilt hinged not on his actual intent but on his victim's presumed perception of his intent. That bizarre approach raises clear due process issues, since it means Ravi committed a crime without realizing it. He did not know he was guilty of bias intimidation until the jury retroactively read the mind of his dead roommate.

The jurors did conclude that Ravi's subsequent actions, which included tweeting that he had seen Clementi "making out with a dude" and planning to spy on the couple a second time, were aimed at intimidating Clementi (who was openly gay) because of his sexual orientation. But it is hard to see how they reached that conclusion, since there is little evidence that Ravi was hostile to Clementi or gay people in general.

Assuming the judge does not override the jury's verdict (which is unlikely), these issues will be raised on appeal. One argument that probably won't be raised, because it has not fared well in the courts: If a defendant's alleged "bias" turns a minor, nonviolent offense into a felony that can send him to prison for 10 years, he is being punished for his opinions, which is not a proper function of the criminal law. 

Previous coverage of the case here.