Jacob Sullum
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The day Tyler Clementi discovered that his roommate at Rutgers University had used a webcam to spy on him as he kissed another man, he described the incident to a friend during an instant-message chat. "It could be interpreted as a hate crime," the friend suggested, according to a recent New Yorker article by Ian Parker. Clementi's reply: "hahaha a hate crime lol."

That risible possibility has become a reality because Clementi, an 18-year-old freshman, jumped off the George Washington Bridge two days later for reasons that remain unclear. The New Jersey trial of Clementi's roommate, Dharun Ravi, illustrates the dangers posed by hate crime statutes, which enhance the penalties for existing offenses based on bigoted motives and therefore punish people for their opinions.

Ravi, who rejected a plea deal that would have kept him out of jail, faces up to 10 years in prison for being an immature jerk. On the evening of Sept. 19, 2010, having set up the webcam on his computer to automatically accept video chat requests, Ravi went to a friend's dorm room across the hall to see what Clementi and his visitor were doing. After watching a few seconds of the two men kissing, Ravi shut off the feed.

Ravi compounded this invasion by tweeting about it. "Roommate asked for the room till midnight," he wrote. "I went into molly's room and turned on my webcam. I saw him making out with a dude. Yay." Two days later, Ravi tweeted that "it's happening again" and dared his followers to watch. Clementi apparently prevented a second viewing by unplugging Ravi's computer.

Prosecutors argue that on both occasions Ravi committed (or attempted) an invasion-of-privacy offense that ordinarily carries a sentence of three to five years. But by asserting that Ravi did so "with a purpose to intimidate" Clementi "because of" his sexual orientation, they bumped this third-degree offense up a level, making the penalty five to 10 years.

During her opening statement on Friday, Middlesex County prosecutor Julia McClure claimed Ravi's actions "were planned to expose Tyler Clementi's sexual orientation," adding that he was "seeking to brand Tyler as different from everybody else, as gay, to set him up for contempt and ridicule."

One problem with this theory, as Ian Parker shows, is that Clementi -- who had come out to his parents shortly before starting college, attended at least one meeting of Rutgers' Bisexual, Gay and Lesbian Alliance, and requested privacy to meet with a man in his room -- was not trying to hide his sexual orientation.

Based on the testimony of the prosecution's own witnesses, the motivation for what Clementi called Ravi's "five sec peep" was twofold: He was curious about whether he had correctly surmised Clementi was gay, and he worried that Clementi's visitor, an older man who was not a student and struck him as sketchy, might steal his stuff.

The prosecution witnesses agreed that Ravi -- who, judging from his many indiscreet tweets and instant messages, was not shy about sharing his opinions -- had never expressed hostility against gay people in general or Clementi in particular. As far as Ravi was concerned, these students said, the scandalous thing about Clementi's tryst was his visitor's age, not his sex. "He's not homophobic," Ravi's lawyer declared during his opening statement. "He's not anti-gay."

The testimony and public record so far support that portrayal. But you can be sure that if Ravi had ever said, "Man, I hate queers," or even endorsed the biblical view of homosexuality, that statement would be used against him and might be crucial in winning a conviction. In that case, he would be punished not just for what he did but also for what he believes.

The legal treatment of Ravi, who probably would not have been charged at all if Clementi had not killed himself, has been unreasonably harsh. But even people who commit far worse crimes should not face extra punishment because they harbor unenlightened views.

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Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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