IN A NEW JERSEY COURTROOM on Monday, the defense rested in the trial of Dharun Ravi, the former Rutgers freshman accused of using a webcam to spy on his roommate's intimate encounter with an older man. The roommate, Tyler Clementi, later committed suicide by jumping off the George Washington Bridge, and his death unleashed a national outcry about teen-age bullying and antigay persecution.
Ravi is not charged with Clementi's death, yet he faces a possible 10 years in prison. The crimes he is being prosecuted for? Invasion of privacy, tampering with evidence, and what the New Jersey criminal code calls "bias intimidation" -- a hate crime. Without the bias charge, Ravi might be looking at three to five years for violating the Peeping Tom statute, using Twitter and text messages to tell people about it, and trying to cover his tracks when he got caught. But by tacking on a hate crime charge, a boorish dorm-room prank could end up putting Ravi away for the next decade of his life.
Hate crime laws -- which intensify the penalty if a crime was motivated by bigotry against certain groups -- have always been problematic. They amount to thought crime, cracking down on an offender with particular severity not because of his deeds, but because of his opinions. Yet since when is it the business of the state to sentence individuals to extra punishment because they hold views that are primitive or unfashionable?
In a nation dedicated to "equal justice under law" -- the words are carved on the façade of the Supreme Court -- the criminal code should not pick and choose among equal victims. Killers or armed robbers, embezzlers or Peeping Toms -- criminals should be prosecuted with commitment and vigor no matter what their motivation was. It is immaterial to a victim, after all, whether his assailant is a bigot or a mafioso. It should be immaterial to our legal system, too.
New Jersey Prosecutor Julia McClure promised to prove that Ravi's actions -- which in the end amounted to little more than watching him kiss another man for a few seconds and later encouraging others to watch -- were not only "mean-spirited," "malicious," and "criminal," but deliberately intended "to expose Tyler Clementi's sexual orientation." The jury will decide, of course. But will justice really be served if New Jersey succeeds in locking Ravi up for 10 years for, in essence, being an 18-year-old jerk? Yes, his webcam stunt was obnoxious and immature, the Newark Star-Ledger noted last week, but does it deserve "the same sentence we give to rapists, pedophiles, and attempted murderers?"
Much of what people "know" about this case turns out not to be true. Clementi wasn't outed by his roommate's actions, for example -- he had come out before starting college and had already attended a meeting of the Bisexual, Gay, and Lesbian Alliance at Rutgers. There was no video of him having sex, let alone one posted on the internet. Prosecution witnesses testified that Ravi was neither an antigay bigot nor motivated by hatred of his roommate. And even Celementi, discussing the incident with a friend from high school the next day, assumed that Ravi had been "just curious."
But even if the worst rumors were true, that wouldn't change the great flaw of hate-crime prosecutions. The criminal-justice system should not concern itself with bad thoughts and pernicious attitudes, but with bad behavior and pernicious harms. The man who breaks your jaw because you are black or gay or Hindu should be punished just as severely as the man who breaks it because you are Socialist or a Yankees fan -- or because he's a thug seeking a thrill.
The flood of hate-crime laws passed in recent years has added to prosecutors' leverage, but has it made society more just? "Proponents of the original bias crime laws said they meant to go after murderous plots by members of … hard-core hate groups," writes New York University law professor James Jacobs. "Now, bias crime prosecutions most often involve young defendants, frequently mixed-up teenagers, who commit low-level offenses like criminal mischief and simple assault, typically escalating from spontaneous altercations."
Tyler Clementi's suicide was a tragedy. But threatening a 10-year sentence for his roommate's odious stunt with a webcam has far more to do with politics than with justice. And it reminds us, or should, that prosecuting people for their opinions is not the hallmark of a free society.