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OpenEdition Books

eGirls, eCitizens

 | 
Jane Bailey
, 
Valerie Steeves

Part III: Dealing with Sexualized Violence

Chapter X. Motion to Dismiss: Bias Crime, Online Communication, and the Sex Lives of Others in NJ v. Ravi

Andrea Slane

Texte intégral

  • 1 Superior Court of New Jersey, Middlesex County, Indictment of Dharun Ravi, Ind. No. 11-04-00596, F (...)
  • 2 Mark Di Ionno, “Exclusive Interview with Dharun Ravi: ‘I’m Very Sorry about Tyler,’” Star-Ledger, (...)

1In 2010, first-year Rutgers University student Dharun Ravi surreptitiously used his webcam to observe his roommate, Tyler Clementi, having a sexual encounter with another man in the dorm room they shared. Criminal charges laid against Ravi included four counts of invasion of privacy, each enhanced by bias intimidation on the basis of Clementi’s sexual orientation.1 He denied all charges and refused a plea deal, publicly insisting that he did not harbour any prejudice against gay people.2 As the case proceeded to court, the defence filed a series of motions attempting to have the case dismissed, arguing that the evidence did not support the charges – especially those regarding bias. This motion record contains a large quantity of online communications evidence. This chapter elaborates on legal arguments put forward by the defence in relation to the bias intimidation charges, focusing on how the online communications evidence operates in relation to the parties’ efforts to deny or affirm a finding of bias intimidation. That evidence provides a rich opportunity to consider how online communications and associated offline behaviours challenge legal understandings of what constitutes criminal activity, and, in particular, what should count as bias-motivated criminal activity online.

2Bias intimidation offences are unusual sorts of criminal offences in that they do not stand alone, but are always linked to a predicate offence. They are designed to more harshly punish defendants who are motivated to commit another criminal offence against a particular victim as a result of their bias against that victim’s identifiable membership in a target group. In the Ravi case, the underlying offence was invasion of privacy (i.e., voyeurism, arising from using the webcam to observe sexual activity, publicizing its availability to others, and attempting to do so a second time). The bias intimidation charges claimed that each of these acts was integrally linked to either Ravi’s negative views of Clementi’s sexual orientation, or, as elaborated below, to Clementi’s feeling intimidated because of these acts.

  • 3 Michael Koenigs & Ian T. Shearn, “Tyler Clementi Cyberbullying Trial Begins Today,” abcNews, 21 Fe (...)
  • 4 While cyberbullying may be a contributing factor in some suicide cases, a simple or direct causal (...)
  • 5 The term “cyberbullying” is used to describe peer harassment centrally involving online communicat (...)
  • 6 Several scholars have noted that Clementi’s suicide played a prominent role in formulating public (...)

3It is tempting to think of this case as one about the tragic consequences of “cyberbullying,” as was common in media reports about the incidents3 – that is, about the often relentless and cruel abuse and harassment of gay youth and girls, as other contributors to this volume have explored, that can play a role4 in leading some victims to commit suicide.5 However, the incidents themselves, as well as the attitudes and behaviours of Ravi and the other inhabitants of the dorm, do not support approaching the case this way, at least not straightforwardly. While, tragically, Clementi did commit suicide shortly after the incidents – no doubt fuelling public speculation that he was driven to do so by the cruelty of his peers – this assumption is not based on any factual evidence. In any case, the suicide is not relevant to the criminal case against Ravi.6 Instead, the charges Ravi faced implicate far more complex social interactions, some of them inflected with prejudice against gays, but none of them bearing the marks of overtly mean-spirited and relentless targeting of an individual for his difference.

  • 7 State of New Jersey v. Dharun Ravi (10 August 2011) Pros. File #10002681 (Superior Court of New Je (...)

4The analysis I present here is situated in socio-legal studies, so it cannot directly explore the motivations behind Ravi’s actions or Clementi’s reactions: it will only do so indirectly through examining the online communications evidence submitted in court, and its relationship to the aims of the parties (to affirm or deny that Ravi was biased, or that Clementi was intimidated, in relation to the incidents). To more finely focus on defence strategies denying bias, I will limit my analysis to the motion record in the first motion to dismiss, which is the legal process by which the defence can attempt to have a case thrown out, and where the burden of proof falls on the defence rather than its usual location with the prosecution.7 That motion record reveals how the defence’s interpretation of online communications suggests there is a continuum of speech that ranges from common forms of social interaction that may raise social justice concerns about tolerance and acceptance, to forms of speech that meet the stringent requirements of criminal liability. While Clementi’s state of mind (whether he felt “intimidated” in a legal sense) is more difficult to determine given his tragic absence as a witness, the available evidence as a whole reveals a complex interplay between online communication and shifting social norms regarding homosexual identity and gay sex, including from Clementi’s perspective. My analysis supports further consideration of context, complexity, and nuance in interpreting youth online interactions, especially where the stakes for young people who may be convicted of criminal offences are extremely high.

Analysis of the Motion Documents and Online Communications Evidence

  • 8 Ibid., at 5.
  • 9 Ibid., at 5–6. Ravi’s motivation for turning on iChat immediately upon leaving his room, according (...)
  • 10 Ibid., at 21.

5Before examining the motion record in depth, I will present some uncontested facts, mingled with contested ones. In September 2010, Clementi started a sexual relationship with an older man he met online. He had one sexual encounter with this man (M.B.) on September 16 in his dorm room, while his roommate (Ravi) was out.8 On September 19, he asked Ravi, to whom he had been randomly assigned to share a dorm room by the university, if he could have exclusive use of the room for a few hours. Ravi agreed, but for reasons that are contested, went directly across the hall and called his computer, knowing it was set to automatically answer and activate his webcam.9 Through his own webcam, Ravi and another student (Molly Wei) were able to view Clementi and M.B. becoming intimate, and they shut down the call after a few seconds. Ravi posted news of the event to his public Twitter feed: “Turned on iChat and saw my roommate making out with a dude. Yay.” He and Wei also alerted dorm mates and friends, both in person and via online communications. A small group of young women, led by Wei, opened the webcam connection again for another few seconds, though Ravi was not present. Afterward, Clementi saw Ravi’s tweet, but did not talk to him about it. Two days later Clementi asked for exclusive use of the room again, and again Ravi agreed. He put out another public tweet: “Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes it’s happening again.” Upon seeing this tweet, Clementi filed a formal complaint with the residence assistant and requested a room change. He also powered off Ravi’s computer, so no one could access the webcam during his encounter with M.B. on 21 September. Ravi claimed to have disabled the webcam feature as well, though whether he did so is contested.10

  • 11 Jane Bailey, Valerie Steeves, Jacquelyn Burkell & Priscilla Regan, “Negotiating with Gender Stereo (...)
  • 12 Gilden, supra note 6.

6These bare facts leave significant room for interpretation as to what role bias against Clementi’s sexual orientation might have played. Surely, as other contributors to this volume explore, sexism and homophobia are strong forces in online interactions, especially in situations where peers use information about sexuality or sexual activity to instil shame in the target and bring on shaming judgments by others.11 The Ravi case does not appear to have been about bringing shame upon Clementi, however. Instead, as this chapter goes on to show, it may be more about the role that a not purely benign curiosity about gay sex played in the social dynamics of a dorm occupied primarily by young people who did not know one another well. Further, issues raised by the case are more specifically about how the social dynamics impacted Clementi as an openly gay member of that dorm community. Clementi appeared to be unconcerned about others knowing he was gay and actively pursuing sexual contacts, but he also had difficulty relating to his peers more generally.12

  • 13 Valerie Jenness, “The Hate Crime Canon and Beyond: A Critical Assessment,” Law and Critique 12 (20 (...)
  • 14 Mark McCormack, The Declining Significance of Homophobia: How Teenage Boys Are Redefining Masculin (...)
  • 15 V. Paul Poteat & Craig D. DiGiovanni, “When Biased Language Use Is Associated with Bullying and Do (...)
  • 16 C. J. Pascoe, “Notes on a Sociology of Bullying: Young Men’s Homophobia as Gender Socialization,” (...)
  • 17 Associated Press, “Dharun Ravi Sentence in Rutgers Webcam Case Renews Hate Crime Law Debate,” Wash (...)

7These complex social dynamics do not fit straightforwardly into the mould of bias intimidation crimes. While there has been significant scholarly debate about the essential components of bias crime, most scholars require hostility or at least the perception of hostility toward the target group.13 However, some sociologists argue that sexual orientation–based bias has changed in character as a result of the successes of the LGBTQ rights movement, such as the inclusion of sexual orientation as a recognized ground of bias in hate crimes. They suggest that at least some young people are living in a “posthomophobic” culture, where blatant hostility toward homosexuality is no longer acceptable.14 This means that while negative associations with gay identity and gay sexuality persist, they are not necessarily consolidated into an overriding rejection of homosexuality, and negative associations formerly connected to sexual object choice may be used more generally as denigrating terms, with a broad range of intended meanings.15 Homophobic language often serves to regulate gender conformity among peers, rather than sexuality itself.16 This means that being called “gay” or “fag” can be about failure to display a narrow band of masculine behaviours and traits, without reference to sexuality, and can be used aggressively or playfully between men, depending on the context. These shifts complicate the relationship between homophobic language and the kind of animus against sexual minorities that the law has typically recognized in bias crimes. The defence in the Ravi case consequently sought to emphasize the mismatch between the defendant’s views on homosexuality (typical of the persistent but milder forms of negative social associations with homosexuality) and the pernicious disgust-based forms of homophobia that are more straightforwardly the subject of bias intimidation offences.17

  • 18 An indictment hearing would be called a preliminary hearing in Canada.
  • 19 State of New Jersey v. Dharun Ravi (13 August 2011) File #10002681(Superior Court of New Jersey, M (...)
  • 20 At trial, the prosecution must prove the defendant’s guilt beyond a reasonable doubt. On a motion (...)

8In order to proceed to trial, the State of New Jersey in the Ravi case had to present evidence to a grand jury in an indictment hearing, trying to demonstrate that it had sufficient grounds to carry forward with the prosecution.18 Indictment hearings differ considerably from trials: the prosecution presents its preliminary case on a fairly low standard – namely, merely to show that it has “probable cause to believe that a crime occurred” and if so, then that there is “sufficient evidence to connect the accused to that crime,” not proof beyond a reasonable doubt as is required at trial.19 An indictment returned by a grand jury (that is, permission to proceed to trial) is difficult to overturn, since at this point legal process prefers to see a case fully tried. If the defence seeks to dismiss an indictment, it must show a blatant error of law or that patently insufficient or misleading evidence was led, so that the burden of proof to dismiss an indictment is the opposite of what it will be at trial (where the burden of proof falls entirely on the prosecution).20 In other words, it is not enough for the defence just to raise a reasonable doubt at this stage. The motion record submitted by the defence at this point in the Ravi case therefore provides a unique opportunity to analyze an alternative narrative put forward affirmatively by the defence regarding the meaning of the online actions and interactions of the defendant, the victim, and their peers.

  • 21 N.J.S.A 2C:16-1(a)(1), (2), and (3) <ftp://www.njleg.state.nj.us/20002001/AL01/443_PDF>.
  • 22 At trial, Ravi was convicted of all of the privacy offences, but only the third variant of bias in (...)

9New Jersey’s bias intimidation offences are broader than those of most other US states, in that they include three variants: (1) committing the underlying crime intending to intimidate the victim because of his or her group membership; (2) doing so knowing that the victim would be intimidated on that basis; or (3) that the victim was in fact intimidated by the underlying offences, in circumstances where it was reasonable for him or her to assume that he or she was targeted because of his or her group membership.21 As Ravi was charged with all three variants, online communications evidence aiming to support or negate any of these three circumstances is relevant to the case.22

10In strongly arguing that these charges were inappropriate to the facts, the defence submitted evidence of electronic communications from two time periods: (a) when the defendant and victim were first introduced to one another (indirectly and directly); and (b) at the time of the first invasion of privacy incident. During the first period, Ravi engaged in peer data mining to uncover whatever online information he could about his future roommate, and reacted to those discoveries in conversations with friends and in performative acts of self-presentation via social media. Clementi, meanwhile, discussed his future roommate online with friends, including his difficulties talking to him after they met. Evidence from the second time frame illustrates the role of social media and other forms of online communication in spreading social news pertaining to a peer’s sexual activity. This evidence included Ravi’s use of Twitter as a mode of self-presentation, while Clementi appeared to use online communications as a primary locus of support, both from friends and from gay online forums.

11The defence argued a particular interpretation of the evidence, countered by the prosecution’s interpretation. Of the two interpretations, the defence interpretation relied more heavily on social context to interpret Ravi’s words, while the prosecution tended to argue for the meaning of words at face value. The defence strategy aimed to soften and recast Ravi’s words and online actions by offering an alternative interpretation of Ravi’s motivations for talking about Clementi the way he did, and for using social media to announce and frame his experiences at university.

12However, the defence did not use the same level of contextual interpretation when it came to Clementi’s online communications. Instead, the defence pointed to instances where Clementi made light of Ravi’s attitudes and deeds in online conversations, and read these comments literally. The prosecution strategy continued to rely on its own straightforward reading of Clementi’s words as well, but focused on different points in conversations where Clementi spoke of feeling violated. The lines of argument pertaining to whether Clementi was intimidated merely highlighted different segments of conversations, each side selectively choosing which words should be taken as most revealing of Clementi’s reactions to Ravi’s misdeeds. These literal strategies lack the capacity to grasp the nuances of online social interactions, and so are unlikely to accurately capture Clementi’s reactions to the social dynamics surrounding these incidents.

13I will next analyze how the evidence operated to support the parties’ arguments, especially the defence, in each of the relevant time frames. Overall, I argue that a more contextual approach to interpreting the online communications evidence is necessary to determine what sorts of online communications appropriately serve as evidence of criminal bias intimidation.

Peer Data Mining, Judgmental Commentary, and Online Self-Presentation

14A key aspect of the defence’s argument focused on Ravi’s various conversations and pronouncements – mostly online – about his future roommate’s characteristics and interests, including his sexuality, in the days before they moved in together at Rutgers. The defence also submitted evidence of Clementi’s instant message conversations about Ravi from this time frame, and additional ones discussing his awkward relationship with Ravi shortly after their initial meeting.

Different Homophobias and Their Role in Heterosexual Male Self-Presentation

15Rutgers University provides incoming students living in dorms with the first name and last initial of their assigned roommate, along with an email address. The defence submitted a conversation log in which Ravi (using the username “goodyearsoles”) chatted online with a friend using the name “bigeaglefan75” as they together searched for and shared information about their roommates based on the information the university provided. The defence recounted this conversation and sequence of events as follows:

  • 23 Supra note 7 at 2. Note that the motion documents provide clarification of some colloquialisms use (...)

Early after learning T.C.’s first name and email address, Defendant searched the internet to learn some things about him, a fairly common occurrence these days when you meet someone new. One of the searches led defendant to a gay-themed website.
Defendant then decided to learn a little more. He came upon a Facebook profile of an individual who had the same first name as T.C., was starting Rutgers in the fall, and was openly gay. Assuming this was his roommate, Defendant started looking through the young man’s public profile. Defendant chatted with friends online about the information he was finding, including impressions about how flamboyant the person appeared to be regarding his homosexuality. He and his friends privately made some juvenile jokes about it (hardly shocking behavior for an 18-year-old boy), and expressed some apprehension about living with someone whose lifestyle is so different from his.
But his attitude appeared to be summed up by his comment, “I’m not really … angry … or sad … Idc [I don’t care)].”
Defendant was asked by this friend, “What if he wants you … wont that get [awkward]”?
Defendant responded, “He [probably] would … Why would it be [awkward] … He’d want me … I wouldn’t want him … I do that with girls who want me but it’s not mutual.”
Nevertheless, however, Defendant learned that it was all a strange mistake. Upon learning that his roommate was actually T.C., Defendant commented that his real roommate was “also gay but regular gay.”23

  • 24 Ibid. at 3.

16This excerpt reveals how the defence set up its argument that there is a distinction between the kind of homophobia that it alleged can correctly be identified as capable of inspiring a bias crime, and the kind of casual prejudice that Ravi (and his friends) displayed in their discussion of the “wrong Tyler.” The defence normalized Ravi’s response to this other Tyler’s sexual identity as “hardly shocking behavior for an 18-year-old boy.” Further, it argued that Ravi was not concerned about being the object of gay sexual interest, implicitly suggesting that disgust at this thought is a necessary feature of the kind of homophobia that inspires bias crimes. Once the misidentification had been corrected, Ravi showed even less concern about having a roommate who was “also gay but regular gay.” The defence thus argued that even if Ravi was somewhat prejudiced in a common sort of way against “flamboyant” gays by making them the brunt of his “juvenile jokes,” he was not disturbed by being in close proximity to gay sexuality generally and so was not capable of a bias crime on the basis of homosexuality, especially toward someone who is “regular” gay. The defence went on to accuse the prosecution of mischaracterizing Ravi’s words as uniformly expressing “concern” about having a gay roommate.24

  • 25 Joseph Burridge, “‘I Am Not Homophobic but…’: Disclaiming in Discourse Resisting Repeal of Section (...)

17This kind of argument is supported by some scholarship about contemporary changes in negative attitudes about homosexuality, especially in social environments where thoroughgoing homophobia has become an unacceptable form of prejudice. In these environments, expressions of disgust for homosexuality tend to reflect negatively on the speaker, so many young people in these contexts explicitly disavow being homophobic, even if they continue to use expressions that cast some ways of “being gay” negatively.25

  • 26 Supra note 7, Volume I Appendix at DA 1.
  • 27 The practice of improving your own social status by ridiculing and denigrating others is a common (...)

18The defence submitted an online conversation as evidence to support this more nuanced framing of Ravi’s attitudes toward homosexuality. An excerpt from this conversation (between Ravi and bigeaglefan75) began with the following sequence of short statements in which Ravi summed up what he knew about his future roommate: “So far/This kid is Gay/ Tries to be good with computers and fails/ he’s poor/ and makes ugly tshirts/ He’s the literal opposite of me.”26 His discovery of Clementi’s homosexuality was thus embedded in the discovery of other “unflattering” characteristics, apparently pointing to Clementi being uncool: that is, not computer savvy, not artistically talented, not well-off, and not socially confident (all unlike Ravi himself). In other words, it appears that Clementi being gay in itself was not the issue – rather, it was being gay in combination with these other non-identity-based differences that led Ravi to see his own social status improved by ridiculing his future roommate for all of these characteristics.27

  • 28 Ravi states that one of his “closest friends” is gay in a text he sent Clementi after being inform (...)
  • 29 Some public commentary also supported this point of view. See J. Bryan Lowder, “Did Dharun Ravi Re (...)

19The profile of Clementi that Ravi developed from his internet data mining makes distinctions based on other personality characteristics: notions of what is geeky or flamboyant serve to modify “gay,” contrasting these more precise markers of different ways to “be gay” with other more favourable ones like “regular” gay, or even cool gay, in the case of a gay friend.28 For the purposes of the defence, these nuances themselves were not of interest and are not elaborated: they were simply submitted to demonstrate that Ravi did not have an overriding problem with homosexuality itself, which the defence implicitly suggests is the only kind of homophobia that could substantiate a bias intimidation charge.29

  • 30 All grammatical and spelling appear as they are in the original text. Common online acronyms inclu (...)
  • 31 Supra note 7, Volume I Appendix at DA 1–2.
  • 32 There are, of course, a variety of theories about why heterosexual men might be attracted to gay s (...)

20Another line of argument for the defence was that Ravi did not have a general problem with gay sex, even though joking about proximity or exposure to gay sex is a standard part of Ravi’s online repertoire. According to evidence submitted by the defence, Ravi first discovered Clementi’s sexuality by tracing his email address to a forum on Just Us Boys, a gay-themed website. Ravi immediately shared this discovery with bigeaglefan75 by sending him a link to the site without telling him where the link will take him. Bigeaglefan75 responded with “WAIT WTF” and “is that him” and a series of “OMG,” “LMAO,” and “LMFAO” before Ravi responded with “No it’s not lol.”30 Bigeaglefan75 carried on with “OH,” “WELL FUCK YOU,” and “why am I looking at a penis,” to which Ravi replied, “You likes it.” Bigeaglefan75 wrote “LOL no” and “wait so how did you find your roommates post on that site with just his email” and Ravi replied, “I’m a pro.”31 Visiting a gay website was clearly titillating, unnerving, and also humorous, and Ravi mostly seemed to relish having brought his friend there unexpectedly, and for a “legitimate” non-sexual purpose (finding out information about his future roommate).32 While it is not clear whether this helps the defence argument that Ravi did not harbour the kind of homophobia that would make him capable of intentionally or recklessly intimidating Clementi, it does point to a common performative practice, in keeping with Ravi later using exposure to live gay sex (via his webcam) as a foil for his own brand of humorous online interactions with his ostensibly straight friends.

  • 33 Supra note 7 at DA 1.
  • 34 Alice E. Marwick & danah boyd, “I Tweet Honestly, I Tweet Passionately: Twitter Users, Context Col (...)
  • 35 Woodrow Hartzog & Frederic Stutzman, “The Case of Online Obscurity,” California Law Review 101:1 ( (...)
  • 36 Helen Fenwick & D. Fenwick, “The Changing Face of Protection for Individual Privacy Against the Pr (...)

21The exchange with bigeaglefan75 also includes indications that Ravi regularly engaged in quippy public pronouncements on Twitter, which were mainly designed to augment his public persona as cool and funny. He and his friend demand of each other to “Look at my twitter” or “check my twitter” after posting something they find humorous.33 These duelling performative Twitter posts illustrate how Ravi used Twitter to project his own sense of a confident, funny, socially dominant self, sometimes by denigrating others, to his networked public, which, as some sociologists have pointed out, is likely a much more precisely imagined audience than merely the vast public of the internet at large.34 The legal status of this perception – that a forum that does not bar anyone from seeing it may be public to varying degrees – is still unsettled however.35 For the most part, courts consider a public forum to address the world at large unless there are barriers to entry. Such a simple approach to the intended audience for online forums is not appropriate for criminal proceedings that rely on a factual determination of intentions, however, as bias intimidation does.36

22The evidence regarding Ravi’s performative use of Twitter lends some insight into why Ravi would later use Twitter to broadcast the news that his roommate was in their room “making out with a dude. Yay.” That is, Ravi was augmenting his cool status by reporting to his larger friendship circle that something ironically uncool was happening to him. The online communication evidence from August 2010 thus both directly and indirectly supports the defence’s argument that both the content of Ravi’s comments and his use of online communications media did not rise to the level of criminal bias. Instead, so the defence argument goes, they merely reflected the common social practices of a certain mode of young heterosexual masculinity – that is, “juvenile jokes,” which primarily serve to reflect favourably on the sort of confident, ironic, masculinity Ravi considered himself to embody. Setting aside the social harms of these kind of attitudes, the indirect function of this line of argument appears to be that Ravi did not intend to intimidate, nor even did he know his actions would intimidate Clementi even if unintentionally, mostly because Ravi was entirely self-absorbed and so did not consider the potential impact of his actions on Clementi at all.

  • 37 Supra note 19 at 1.
  • 38 Ibid. at 4.

23The prosecution characterized these sorts of conversations very differently: given the low standard of proof required at the indictment hearing stage, it merely insisted that Ravi’s online conversations “document his concern and displeasure, if not alarm” over the discovery that his future roommate was gay.37 The prosecution singled out particularly inflammatory words or statements from a conversation Ravi had with another friend, such as “F–K MY LIFE. He’s gay,” “he’d be a chick in a gay relationship,” “fag,” and “what if I catch him with a dude in my room.”38 However, the actual instant message chat log submitted, if read contextually, embeds these statements in a larger conversation. That conversation positions homosexuality in relation to what Ravi and his friend clearly agree are other unflattering interests (violins, fish tanks, gardening, and lack of computer savvy), or as banter during which friends teased each other about viewing gay porn while maintaining a firm grasp on their mutual heterosexuality.

24In sum, the defence argued that the evidence demonstrated that Ravi did not display the sort of homophobia – read as intent to do harm to gay people – that would make him capable of a bias intimidation crime. In contrast, for the prosecution, even this fairly ordinary version of homophobia – bound up as it is with other forms of adolescent judgment and prejudice – was sufficient to indicate that Ravi was at least inclined to be indifferent to the harmful effects of his actions toward Clementi. The legal question then is whether insensitivity to the impact of the words and actions of one’s self-serving online persona is sufficient grounds for conviction for intention to intimidate or knowledge that one’s actions would intimidate, on the basis of sexual orientation.

Gay Youth Making Light of Homophobia

25The third version of the bias intimidation charges focuses entirely on the victim (requiring proof that he was intimidated and reasonably assumed he was targeted for being gay). Here, the primary defence strategy in the first time frame was to argue that Clementi was not intimidated by Ravi to the degree that should be required for a bias intimidation conviction.

26The defence tried to use online communication evidence to show two things. First, Clementi also made some mild negative comments about Ravi (based on his ethnicity), which the defence argued illustrated how common and not necessarily indicative of bias such comments are. Second, the defence argued that while Clementi clearly felt that Ravi exhibited some discomfort about his sexuality, for the most part Clementi took these indicators in stride and sometimes even found them amusing and joked about them with friends.

  • 39 Supra note 7 at 3–4, referencing evidence in Appendix 1 at DA 14–15.
  • 40 Ibid. at 4.

27With regard to the first argument, the defence provided the following excerpt from a text conversation Clementi had with his friend H.Y. shortly after he and Ravi moved in together, in which Clementi remarked “his [family] is sooo indian/first gen americanish … just like … first son off to college … his rents defs owna dunkin [donuts].”39 Based on these comments, the defence argued, “In other words, just like Defendant, T.C. was evaluating his roommate based on superficial characteristics, because that was all he knew of him at the time. It was not suggestive of T.C. being prejudiced about Indians, any more than Defendant’s private jokes were indicative of homophobia.”40 In other words, the defence argues that because Clementi exhibited milder forms of racism toward Ravi, he would not have been disturbed by Ravi exhibiting milder forms of homophobia toward him. This sort of racism and homophobia is therefore cast by the defence as normal, and so not capable of serving as evidence of a criminal level of bias.

  • 41 Ibid. at 4–5.
  • 42 Ibid.

28As to the second line of argument, the defence submitted an excerpt from a second conversation with another friend, S.C., arguing that Clementi “became aware that Defendant likely knew that he was gay. He could tell Defendant was uncomfortable, because he observed Defendant changing his clothes in the closet. T.C. was amused by the awkwardness of it, but was not upset with Defendant as a roommate at this point.”41 The defence argued that this conversation illustrates that Clementi was generally satisfied with Ravi as a roommate, as “he noted that Defendant was ‘considerate’ and ‘perceptive’ about T.C. wanting to be left by himself. At one point, T.C. commented that Defendant was ‘way too considerate of me.’ T.C. also said that he ‘wouldn’t mind if [Defendant] found me with a guy.”42 Here, the defence was arguing that in order to be “intimidated” in the sense required by a bias intimidation offence, Clementi would have had to fear his roommate, and the defence concluded that on the facts he clearly did not.

29The defence did not choose to emphasize broader contextual cues about Clementi’s relationship with his roommate, however, even where it may have served to further support the defence argument that Clementi did not feel intimidated by Ravi. Within the evidence submitted are indicators that Clementi’s awareness of his roommate’s discomfort with his sexuality was part of a larger problem. The two roommates appeared unable to connect with one another on many levels, not just in relation to Clementi’s sexuality, which may have reduced the impact of some statements highlighted by the prosecution. The defence submitted the following conversation between Clementi and S.C., for instance:

  • 43 Ibid., at Volume I Appendix at p. DA 25.

[S.C.]: hows living w ur roomie
[TC]: its k/he’s never in the room lolz/oh but hehe he knows I’m gay/ and wow/ he changes his pants/ inside his closet/ hehehehehe/ soooo funny/ its like the most awk thing you’ve ever seen/ but oh well
[S.C.]: hahaha
[TC]: yah he’s pretty fine all around/ a lil bit messy/ but so far so good43

  • 44 Ibid.
  • 45 Ibid.
  • 46 Ibid. at DA 20–21.

30The conversation continued with S.C. asking how Ravi knew Clementi was gay. Clementi described accurately how Ravi figured it out, which he knew from Ravi’s own Twitter feed, not from any direct conversation with Ravi: “he did some internet investigating lolz/ he googled the first part of my email address/ and it turns out I used that as a screen name on some site/ and so he just naturally assumes/ And idk/ I’m out to a whole bunch a people.”44 S.C. replied, “interesting/ well I bet ur roomie help,” to which Clementi queried “how so? help how?” and S.C. explained, “he probably told ppl [people].” Clementi replied, “oh haha/ yah/ he tweeted about it/ hehehe/.” S.C. replied, “lol,” and Clementi continued, “but yah/ I would say I’m out/ oh but about roomie/ I don’t think I’ve actualy ever talked to him heheh/ we kinda just ignore ea other.”45 At this point (i.e., prior to the invasion of privacy incidents), Clementi appeared to see humour in Ravi’s awkwardness about his sexuality, even as he also expressed some anxiety to another friend, H.Y., about not being able to talk to Ravi about even ordinary roommate things like where to place furniture or whether to open or close the blinds.46

  • 47 Ibid. at DA 31.

31Embedded in these exchanges is evidence that Clementi actually did not appear to be very concerned about his sexual hookups being noticed or even inadvertently witnessed. While not in itself relevant to the case, the record notes that Clementi had a sexual encounter with M.B. in the dorm room once prior to the incidents, which Ravi did not know about as he wasn’t home. After this encounter, Clementi discussed the complications of short-term rentals of motel rooms with S.C. and noted how privacy is hard to come by in a dorm, and that he would likely “get a reputation” anyway, even if Ravi didn’t walk in “while I’m getting fucked haha” because “you have to walk through the lounge in order to get to my room … /there are always people around/ Bringing a 25 year old guy/ into my room/ who leaves like 3 hrs later/i mean … / somebody had to notice.”47

  • 48 The prosecution, in contrast, did not submit any evidence in their response pertaining to Clementi (...)

32These exchanges seem to support several of the defence’s purposes, even though they are not explicitly pointed to in the arguments. First, they show that Clementi was not worried about being “outed” as gay, nor particularly concerned about people in the dorm knowing that he was having sex with a man in his room. The defence offers a contextual reading of these statements in the days leading up to the incidents, designed to lessen the strength of the prosecution argument that Clementi was intimidated by information about his sexual activity being broadcast via Ravi’s Twitter feed or discussed among dormmates – though this strategy does not address any possible distinctions between sexual information and the capacity to actually view Clementi having sex with his date. Second, the exchanges also reveal that Clementi was keen on having a regular place to bring his date to for sex, and had difficulty talking to Ravi. The defence suggests that these exchanges might then provide an alternative explanation for Clementi’s request for a single room following the incidents, and so raise doubt as to whether his request resulted from intimidation specific to the incidents.48

Peer Surveillance and Social News Broadcasting

33With regard to the time frame immediately surrounding the webcam incidents themselves, the defence submitted further online communication evidence, as well as excerpts from witness interviews with investigators, to continue the strategy of distancing Ravi’s actions from homophobic intentions. For example, the defence tried to frame Ravi’s discussions of the webcam incidents as merely reactions to (and capitalizing on) a novel experience (that is, glimpsing and being in close proximity to live gay sex) as opposed to being motivated by intention to intimidate Clementi based on his sexual orientation. The defence also tried to frame Clementi’s distress and outrage following the incidents as resulting from invasion of privacy itself, rather than specific to feelings of intimidation on the basis of his sexual orientation.

Gaining Social Status via Creating Social Buzz

  • 49 Supra note 7 at 55. Witness Scott Xu (described by the defence as having been friends with the def (...)
  • 50 This is not to say that all negative associations with homosexuality are the same. As Lawrence Blu (...)

34Immediately after seeing Clementi and his date “making out” through the webcam, Ravi and Wei generated significant social buzz about their actions and what they had seen, both in the dorm itself and among a broader friendship circle. Within the dorm itself, this social news broadcasting was mostly done in person, and the defence submitted excerpts from police interviews with witnesses from the dorm, none of whom reported having heard Ravi “say anything negative about homosexuals” or being a “homophobic person.”49 These excerpts support and continue the defence’s argument regarding Ravi’s online comments about Clementi before the incident – that to be sufficiently homophobic to commit a bias crime, one must have an overriding animosity toward gay people as a whole, which Ravi did not. This argument, supported by the witness statements that share this point of view, recasts milder forms of homophobia as something not appropriate for punishment by the criminal law.50

35The defence characterized Ravi and Wei’s use of social media as follows:

  • 51 Supra note 7 at 6.

Both were stunned, as they had never personally observed anything like this before. Defendant posted to his Twitter feed, “Turned on iChat and saw my roommate making out with a dude. Yay.” Wei and Defendant started messaging friends to check out Defendant’s Twitter. Their friends replied with some crude jokes, often making fun of Defendant for having a gay roommate.51

  • 52 danah boyd, “Streams of Content, Limited Attention: The Flow of Information through Social Media,” (...)

36While not explicitly saying so, the defence’s argument was that this sort of peer surveillance and subsequent social news broadcasting was merely a normal reaction by heterosexual youth who found themselves in close proximity to gay sex, which is cast as distinct from homophobia toward gay people. The defence suggests that by broadcasting this kind of news, Ravi and Wei were merely attempting to improve their social status.52 Inviting others to partake in the experience of seeing live gay sex (even if only for a few seconds) was not, the defence argued, fuelled by homophobia per se, but rather by a quest to socially capitalize on a novel experience. Again, this argument relied heavily on distinguishing between the kind of homophobia that the defence claimed inspire criminal intentions, and the kinds of homophobia that makes seeing gay sex shocking and titillating to those who haven’t seen it before.

  • 53 Supra note 7 at 64.

37If we extend the defence’s implicit argument regarding the use of Twitter as a vehicle for Ravi’s self-presentation, then Ravi’s decision to publicize having stumbled upon his roommate having gay sex becomes similar to his pronouncements about having a geeky gay roommate (i.e., “isn’t it funny/ironic that this is happening to me”). This entirely self-absorbed practice continues then with the tweet regarding the second attempted invasion of privacy incident two days later: “Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes it’s happening again.” 53 According to the defence, this second tweet was intended as another in the series of sarcastic comments by Ravi about the irony of the situation, and was not meant to actually inspire anyone to check out the webcam, nor to particularly engage in ridicule of Clementi. In other words, the defence was willing to admit that Ravi was immature and insensitive, but argued that he should not be held to have a criminal level of bias against Clementi.

  • 54 Some scholars have noted that people don’t necessarily use publicly accessible social media with t (...)
  • 55 Supra note 7 at 39–40.

38Further, the defence argued that Ravi did not use his public Twitter account to address the world at large: it argued that he did not intend Clementi to see the Twitter post and never drew the post to his attention. In other words, Ravi was essentially addressing his own friendship circle, those he knew to be following his Twitter feed.54 A central argument of the defence then was that bias intimidation requires a defendant to directly intimidate the victim, not indirectly expose the victim to negative social consequences by others (which the defence also argued were in any case not intended either).55

  • 56 Some commentators have thought of circumstances where a heterosexual sexual encounter would inspir (...)
  • 57 Supra note 19 at 22.
  • 58 Ibid.

39In contrast, the prosecution emphasized the negative tone of these tweets, and argued that a heterosexual encounter would not have generated the same level of interest, and therefore that Clementi could reasonably assume that he was targeted because of his sexual orientation.56 The prosecution stressed that Ravi’s tweets were set to be public, and thereby were accessible by anyone (including Clementi).57 It argued that the public nature of the second tweet “clearly establishes the defendant’s intent on September 19 and again on September 21 – to expose T. C.’s sexual orientation to others to embarrass, humiliate and intimidate him.”58

  • 59 This same legal issue has come up in relation to “revenge porn,” when an ex-lover posts an intimat (...)
  • 60 Gilden, supra note 6.

40This raises an important legal issue regarding whether bias intimidation must be directed specifically at the victim, or whether (as argued by the prosecution) simply putting the content out there for the victim to discover or otherwise exposing a victim to intimidation (including by others) is sufficient.59 It also raises two further issues regarding interpretation of “public” online communications that are not directly addressed in the case: whether privacy settings alone determine the intent of a party for communications to be read widely (which runs contrary to how many users subjectively consider their online communications); and whether mentioning a person’s sexual orientation or the fact of their same-sex sexual activity alone is sufficient to infer an intent to humiliate or embarrass, especially where the subject is fairly open about his sexuality and active sex life, as was the case here.60

41Again, the defence’s interpretation of online communications suggests there is a continuum of speech that ranges from common forms of social interaction, that may raise social justice concerns about tolerance and acceptance, to forms of speech that meet the stringent requirements of criminal liability. In this case at least, a more contextual approach appeared to provide the defence with support for its argument that Ravi’s online behaviour should not fall within the bias intimidation offence.

Feeling Violated vs. Feeling Intimidated

  • 61 Supra note 7 at 8, citing evidence submitted in Appendix III at DA 191.
  • 62 Ibid.
  • 63 Ibid., at 8–9.
  • 64 Ibid., citing DA 195.
  • 65 Ibid. at 24.

42To argue that Clementi did not feel intimidated, the defence focused on excerpts from Clementi’s online conversations with his friend H.Y., in which he characterized the first webcam incident as another amusing example of how awkward Ravi felt about his sexuality. It noted that Clementi “found the incident ‘sooo funny,’” and that he commented, “it’s not like he left the cam on or recorded anything/ he just like took a five sec peep lol.”61 With regard to Ravi’s tweet, the defence cited Clementi’s comments, “When I first read the tweet/ I defs felt violated/ But then/ When I remembered what actually happened … / Idk … /Doesn’t seem soooo bad lol”62 and “I’m really excited to see what the next tweet will be/ heehee/ tomoro night lol/maybe.”63 Further, the defence referred to how Clementi explicitly dismissed the action as a hate crime: after H.Y. suggested that “it could be interpreted as a hate crime,” Clementi responded “hahaha a hate crime lol/ that would be so funny/ white people never get hated/ hee hee” to which H.Y. responded “you’re gay ….”64 The defence summarized this exchange as indicating that “T.C. regarded the incident on the 19th as ‘not so bad,’ that he expressed amusement over it, and that he laughingly dismissed the idea of a ‘hate crime.’”65

  • 66 Kathryn R. Brown, “The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networ (...)

43The defence’s characterization of Clementi’s state of mind as far from intimidated relies in part on the frequent “laughing” indicators in his online speech, expressions like “hehe,” “haha,” and “lol.” However, a contextual reading of these expressions would show that Clementi’s online conversations are virtually all peppered with such expressions, regardless of the seriousness of the subject matter. Some scholars have noted a common social tendency to make light of unpleasant situations on social media, in order to portray an online persona who is happy and hence “likeable.”66 While it would have helped the prosecution’s case, the prosecution did not raise this contextual interpretation of Clementi’s online speech patterns in reply to the defence either.

  • 67 Supra note 7 at 9.
  • 68 Ibid. at 40.

44The second argument put forward by the defence argued that Clementi’s statement that he “defs felt violated” was not specifically related to his sexual orientation, but rather that the reaction would likely have been the same regardless of the motivation behind the privacy invasion. The defence provided additional excerpts from online conversations Clementi had on a Just Us Boys forum a few hours after filing his room change request, in which he “described Defendant’s behaviour as ‘obnoxious,’ and described his level of annoyance as ‘kinda pissed’ but ‘aside from being an asshole from time to time, [Defendant is] a pretty decent roommate.’”67 The defence concluded, “there is no evidence that T.C. actually was intimidated by the Defendant …. There was evidence that he felt violated, though that is inherent in the Invasion of Privacy charge. But he never expressed fear.”68

  • 69 Out Online: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth on the Internet, (New (...)

45A fundamental legal question is whether the third variant of the New Jersey bias intimidation offence (feeling intimidated in circumstances where it is reasonable for victims to assume that they were targeted because of their group membership) requires fear on the part of the victim, or whether outrage about being targeted because of sexual orientation would be sufficient. If outrage is sufficient, it may be relevant that Clementi chose to voice his strongest feelings of violation about the incidents on a specifically gay online forum.69 However, the prosecution did not address these contextual distinctions.

46Finally, the defence also raised the question of whether any violation or outrage Clementi felt was due to his reasonable conclusion that he was targeted for being gay, or whether it was more generally related to having his sexual privacy invaded. Invasion of privacy is a sexual offence, involving observing or recording a person whose intimate parts are exposed or who is engaged in sexual penetration or sexual contact. The defence therefore raised a valid question that the prosecution did not address, preferring instead to continue to assume that, in effect, whenever a gay person’s sexual privacy is invaded, it follows that any reaction he or she experiences results from feeling targeted for being gay.

  • 70 NJ Rev Stat § 2C:16-1 (2013); Jessica P. Hodge, Gendered Hate: Exploring Gender in Hate Crime Law (...)
  • 71 Beverly A. McPhail, “Gender-Bias Hate Crimes: A Review,” Trauma, Violence, & Abuse 3 (2002), doi:1 (...)

47By failing to address the particular type of targeting that Clementi could reasonably assume, the prosecution argument runs into the legal territory that plagues the application of both gender and sexual orientation bias offences to sexual crimes. In many jurisdictions, New Jersey included, gender bias is excluded as a ground for bias offences linked to sexual crimes, in part because of the difficulty in separating out the kind of gender bias that should qualify for harsher punishment as a bias crime, from other gender dynamics at play more generally in sexual offences.70 While many legal scholars have made a convincing case for including gender bias as a ground in relation to sexual violence against women, especially where there is evidence of animus against women as a group, the case for including gender bias as a ground in relation to non-violent sexual crimes like invasion of privacy has not been fully developed.71 This makes the prosecution’s job of building a solid argument for applying sexual orientation bias to non-physical sexual crimes all the more crucial, because doing so could help lay important groundwork for recognizing when gender bias should apply to similar situations.

  • 72 Heidi M. Hurd & Michael S. Moore, “Punishing Hatred and Prejudice,” Stanford Law Review 56 (2004): (...)

48The rub lies in that both women and gay people could reasonably assume they were targeted for a sexual crime because of their group membership, precisely because of the sexual nature of the crime. If such a reasonable assumption is a foregone conclusion, however, then a key source of justification for bias crimes – recognizing enhanced harm to the target group – is lost, since it is generalized.72 A more convincing approach would be to prove that the victim reasonably assumed he or she was targeted for a bias crime because of his or her sexual orientation or gender, rather than only for the underlying non-physical sexual offence. This would help clarify the nature and degree of bias the victim must reasonably perceive, and might help forge a pathway for recognizing gender bias as an appropriate ground as well.

Conclusion

  • 73 Supra note 7 at 29.

49The defence’s motion to dismiss was ultimately unsuccessful, and the case did proceed to trial as planned, where the defence and prosecution continued to argue many of the same points as described above. While much more evidence was presented at trial, including several weeks of witness testimony, in the end, Ravi’s conviction on the bias intimidation offences relied only on the third variant: Clementi was found to have been intimidated under circumstances where he reasonably assumed he was targeted because of his sexual orientation. In other words, the jury was not convinced beyond a reasonable doubt that Ravi intended to intimidate Clementi, or knew that he would cause Clementi to feel intimidated as a result of his actions. The jury seemingly agreed with the defence’s argument that Ravi “showed poor, but not criminal, judgement.”73 However, the jury was also convinced beyond a reasonable doubt that Clementi felt intimidated to the required degree and reasonably assumed he was targeted for his sexual orientation.

  • 74 While it is beyond the scope of this chapter, the defence made a considerable effort to obtain dis (...)
  • 75 Associated Press, supra note 17.
  • 76 Kate Zernike, “Judge Defends Penalty in Rutgers Spying Case, Saying It Fits Crime,” New York Times(...)

50Reflecting on the motion record and the arguments put forth by the parties, this result acknowledges that some negative comments about gay identity, and some negative reactions to being in proximity to gay sexual activity, do not substantiate an intent to intimidate that rises to the level of a criminal offence. However, a finding of guilt on the third variant of bias intimidation based on Clementi’s perceptions of events is more problematic in the absence of more contextual consideration of both Clementi’s comfort with public knowledge of his sexual activity and how he spoke more generally in online contexts.74 Since Ravi received a lighter sentence than would normally be imposed by a bias intimidation conviction, the judge clearly was also not comfortable with a straightforward application of a bias offence to this type of crime. The judge stated during the sentencing hearing, “I do not believe [Ravi] hated Tyler Clementi. He had no reason to, but I do believe he acted out of colossal insensitivity.”75 The prosecution has appealed this light sentence; and the defence has appealed the conviction.76

  • 77 Di Ionno, supra note 2.
  • 78 The defence submitted a statement by Marc R. Poirier, for instance, who provided an academic argum (...)
  • 79 Gilden, supra note 6 at 360.

51This was a difficult case: the bias intimidation charges were an ongoing issue for Ravi, who denied hating gays all along.77 His conviction on invasion of privacy charges is relatively uncontroversial, but the bias intimidation conviction has inspired much debate about whether these laws are appropriately applied to this type of offence, and especially to this type of online conduct. Much of the debate about the appropriateness of Ravi’s bias intimidation charges has centred on whether bias intimidation charges should ever be applied to non-physical predicate crimes, an argument that too handily discounts psychological harm.78 A thornier issue is whether bias intimidation charges are appropriate tools for addressing common non-physical forms of sexual prejudice in the context of sexual crimes, as opposed to statements that are clearly intended to cause a victim to feel threatened (psychologically or physically). On the other hand, this case further raises important questions about the limitations of requiring proof that a victim feels a high level of threat or danger. Imposition of such a standard would seem to preclude redress for bias-motivated acts against victims who are not ashamed of public exposure of their sexual identity or activities, as well as those who eschew displaying their feelings of intimidation, but who are nonetheless disturbed by the criminal conduct maliciously directed at them because of their sexuality (or gender).79

52At the same time, the case raises important cautions about the criminalization of online communication conduct, and in particular the uneven levels of sophistication that parties use to argue about the interpretation of online evidence. Bias intimidation is a unique offence that requires adjudicators to delve into and pass judgment on the states of mind of the perpetrator and victim. Informed contextual analysis of online communications evidence in these cases is essential to arriving at an appropriate determination of what kinds of online statements and actions serve as reliable indicators of a criminal level of bias motivation and impact. Our legitimate concerns about the emotional health and well-being of LGBTQ youth online (and girls, as more directly examined throughout this volume) requires that we strive to understand the complexities of how information about the sex lives of others operates in the social ecology of young people, and to incorporate these complexities into legal arguments both for and against criminal convictions for particular online acts. Moreover, closer examination of the heteronormative masculinity at play in the case raises questions about the ways that stereotypes and prejudices operate to shape and constrain the gender and sexual performances available to all youth in online communication.

Notes

1 Superior Court of New Jersey, Middlesex County, Indictment of Dharun Ravi, Ind. No. 11-04-00596, File No. 10002681, Filed 20 April 2011 (photocopies obtained from Superior Court of New Jersey, Middlesex County).

2 Mark Di Ionno, “Exclusive Interview with Dharun Ravi: ‘I’m Very Sorry about Tyler,’” Star-Ledger, 22 March 2012, <http://blog.nj.com/njv_mark_diionno/2012/03/exclusive_interview_dharun_rav.html>. “I’m never going to regret not taking the plea,” Ravi said emphatically. “If I took the plea, I would have had to testify that I did what I did to intimidate Tyler and that would be a lie. I won’t ever get up there and tell the world I hated Tyler because he was gay, or tell the world I was trying to hurt or intimidate him because it’s not true.”

3 Michael Koenigs & Ian T. Shearn, “Tyler Clementi Cyberbullying Trial Begins Today,” abcNews, 21 February 2012, <http://abcnews.go.com/US/tyler-clementi-bullying-trial-begins-today/story?id=15752236>.

4 While cyberbullying may be a contributing factor in some suicide cases, a simple or direct causal relationship should not be assumed. See Jane Bailey, “Time to Unpack the Juggernaut? Reflections on the Canadian Federal Parliamentary Debates on ‘Cyberbullying,’” Dalhousie Law Journal 37:2 [forthcoming]: 38–39, archived at Social Sciences Research Network, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2448480>.

5 The term “cyberbullying” is used to describe peer harassment centrally involving online communication technologies. One widely accepted general definition considers it to consist of “willful and repeated harm inflicted through the medium of electronic text,” involving a power imbalance between the perpetrator and the victim. Justin Patchin & Sameer Hinduja, “‘Bullies Move Beyond the Schoolyard: A Preliminary Look at Cyberbullying,” Youth Violence and Juvenile Justice 4:2 (2006): 152.

6 Several scholars have noted that Clementi’s suicide played a prominent role in formulating public discussion about cyberbullying of gay youth and the emotional toll it can take. Much of the discussion, however, was based on false assumptions about what Ravi did. Andrew Gilden, “Cyberbullying and the Innocence Narrative,” Harvard Civil Rights — Civil Liberties Law Review 48 (2013), <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2208737>; Jeffrey W. Cohen & Robert A. Brooks, Confronting School Bullying: Kids, Culture, and the Making of a Social Problem (Boulder, CO: Lynne Rienner, 2014); Jasbir K. Puar, “The Cost of Getting Better: Suicide, Sensation, Switchpoints,” GLQ: A Journal of Lesbian and Gay Studies 18 (2012), doi:10.1215/10642684-1422179.

7 State of New Jersey v. Dharun Ravi (10 August 2011) Pros. File #10002681 (Superior Court of New Jersey, Middlesex County, Law Division — Criminal Part) On Motion to Dismiss the Indictment and Compel Discovery, Brief on Behalf of Defendant Dharun Ravi (photocopies obtained from Superior Court of New Jersey, Middlesex County).

8 Ibid., at 5.

9 Ibid., at 5–6. Ravi’s motivation for turning on iChat immediately upon leaving his room, according to the defence, was because he was concerned about having a “strange older man” in his room where he had left his iPad. He claims he did not expect to see any sexual activity.

10 Ibid., at 21.

11 Jane Bailey, Valerie Steeves, Jacquelyn Burkell & Priscilla Regan, “Negotiating with Gender Stereotypes on Social Networking Sites: From ‘Bicycle Face’ to Facebook,” Journal of Communication Inquiry 37 (2013), <http://digitalmediafys.pbworks.com/w/file/fetch/69691259/Bailey_Jane2013GenderStereotypes.pdf>; Robyn M. Cooper and Warren J. Blumenfeld, “Responses to Cyberbullying: A Descriptive Analysis of the Frequency of and Impact on LGBT and Allied Youth,” Journal of LGBT Youth 9 (2012), <http://www.partnershipsjournal.org/index.php/ijcp/article/viewFile/72/57>. See also Mary Ann Franks, “Unwilling Avatars: Idealism and Discrimination in Cyberspace,” Columbia Journal of Gender and Law 20 (2011), <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1374533>.

12 Gilden, supra note 6.

13 Valerie Jenness, “The Hate Crime Canon and Beyond: A Critical Assessment,” Law and Critique 12 (2001), doi:10.1023/A:1013774229732.

14 Mark McCormack, The Declining Significance of Homophobia: How Teenage Boys Are Redefining Masculinity and Heterosexuality (Oxford: Oxford University Press, 2012).

15 V. Paul Poteat & Craig D. DiGiovanni, “When Biased Language Use Is Associated with Bullying and Dominance Behavior: The Moderating Effect of Prejudice,” Journal of Youth and Adolescence 39 (2010), doi:10.1007/s10964-010-9565-y.

16 C. J. Pascoe, “Notes on a Sociology of Bullying: Young Men’s Homophobia as Gender Socialization,” QED: A Journal of GLBTQ Worldmaking 1 (inaugural issue; 2013): 87–104, <http://msupress.org/wp-content/themes/press/jfileviewer.php?id=50-21F-7105&art=yes>.

17 Associated Press, “Dharun Ravi Sentence in Rutgers Webcam Case Renews Hate Crime Law Debate,” Washington Post, 22 May 2012, <http://www.washingtonpost.com/national/dharun-ravi-sentence-inrutgers-webcam-case-renews-hate-crime-law-debate/2012/05/22/gIQAui0DiU_story.html>; Lila Shapiro, “Dharun Ravi Appeals Highlight the Continued Hate-Crime Law Debate,” Huffington Post, 13 June 2012, <http://www.huffingtonpost.com/2012/06/13/dharun-ravi-appeals-hatecrime_n_1594320.html>.

18 An indictment hearing would be called a preliminary hearing in Canada.

19 State of New Jersey v. Dharun Ravi (13 August 2011) File #10002681(Superior Court of New Jersey, Middlesex County, Law Division — Criminal Part) State’s Response to Motion to Dismiss the Indictment and Compel State to Produce Discovery, Brief Submitted on Behalf of State of New Jersey (photocopies obtained from Superior Court of New Jersey, Middlesex County), at 11.

20 At trial, the prosecution must prove the defendant’s guilt beyond a reasonable doubt. On a motion to dismiss an indictment, the defence must show that the indictment hearing was “manifestly deficient or palpably defective.” State v. Hogan (1996) 144 N.J. 216, <http://leagle.com/decision/1996360144NJ216_1229.xml/STATE%20v.%20HOGAN>, 676 A.2d 533 at 228–29.

21 N.J.S.A 2C:16-1(a)(1), (2), and (3) <ftp://www.njleg.state.nj.us/20002001/AL01/443_PDF>.

22 At trial, Ravi was convicted of all of the privacy offences, but only the third variant of bias intimidation. He also received a light sentence, incommensurate with what would normally be expected of a bias intimidation conviction. Ravi was sentenced to three years probation, thirty days in county jail, three hundred hours of community service, counselling on “cyberbullying and alternative lifestyles,” and a $10,000 fine. The contents of the counselling are not specified. Kashmir Hill, “Dharun Ravi Gets off Easy in Rutgers Spying Case: Month in Jail and $10,000 Fine,” Forbes, 21 May 2012, <http://www.forbes.com/sites/kashmirhill/2012/05/21/dharun-ravi-gets-off-easy-in-clementi-case-monthin-jail-and-10000-fine/>.

23 Supra note 7 at 2. Note that the motion documents provide clarification of some colloquialisms used in online communications — such as replacing “awk” with “[awkward]” — but many of the grammatical peculiarities of the online text record are left as is.

24 Ibid. at 3.

25 Joseph Burridge, “‘I Am Not Homophobic but…’: Disclaiming in Discourse Resisting Repeal of Section 28,” Sexualities 7 (2004), doi:10.1177/1363460704044804.

26 Supra note 7, Volume I Appendix at DA 1.

27 The practice of improving your own social status by ridiculing and denigrating others is a common adolescent behaviour. David Johnson & Geraldine Lewis, “Do You Like What You See? Self-Perceptions of Adolescent Bullies,” British Educational Research Journal 25 (1999), doi:10.1080/0141192990250507.

28 Ravi states that one of his “closest friends” is gay in a text he sent Clementi after being informed of the room change request. Supra note 7 at 1.

29 Some public commentary also supported this point of view. See J. Bryan Lowder, “Did Dharun Ravi Really Commit a Hate Crime?” Slate, 20 March 2012, <http://www.slate.com/blogs/xx_factor/2012/03/20/did_dharun_ravi_really_commit_a_hate_crime_html>; Emily Bazelon, “Make the Punishment Fit the Cyber-Crime,” Opinion, New York Times, 19 March 2012, <http://www.nytimes.com/2012/03/20/opinion/make-thepunishment-fit-the-cyber-crime.html?_r=0>.

30 All grammatical and spelling appear as they are in the original text. Common online acronyms include WTF (what the fuck); OMG (Oh my God); LMAO (laughing my ass off); LMFAO (laughing my fucking ass off); and LOL (laughing out loud).

31 Supra note 7, Volume I Appendix at DA 1–2.

32 There are, of course, a variety of theories about why heterosexual men might be attracted to gay sexual materials. See, for instance, Brian P. Meier, Michael D. Robinson, George A. Gaither & Nikki J. Heinert, “A Secret Attraction or Defensive Loathing? Homophobia, Defense, and Implicit Cognition,” Journal of Research in Personality 40 (2006), doi:10.1016/j.jrp.2005.01.007.

33 Supra note 7 at DA 1.

34 Alice E. Marwick & danah boyd, “I Tweet Honestly, I Tweet Passionately: Twitter Users, Context Collapse, and the Imagined Audience,” New Media & Society 13 (2010), <http://www.tiara.org/blog/wp-content/uploads/2010/07/marwick_boyd_twitter_nms.pdf>.

35 Woodrow Hartzog & Frederic Stutzman, “The Case of Online Obscurity,” California Law Review 101:1 (2013), <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1597745>.

36 Helen Fenwick & D. Fenwick, “The Changing Face of Protection for Individual Privacy Against the Press: Leveson, the Royal Charter and Tort Liability,” International Review of Law, Computers & Technology 27:3 (2013), <http://www.tandfonline.com/doi/pdf/10.1080/13600869.2013.797203>.

37 Supra note 19 at 1.

38 Ibid. at 4.

39 Supra note 7 at 3–4, referencing evidence in Appendix 1 at DA 14–15.

40 Ibid. at 4.

41 Ibid. at 4–5.

42 Ibid.

43 Ibid., at Volume I Appendix at p. DA 25.

44 Ibid.

45 Ibid.

46 Ibid. at DA 20–21.

47 Ibid. at DA 31.

48 The prosecution, in contrast, did not submit any evidence in their response pertaining to Clementi’s state of mind prior to the incidents.

49 Supra note 7 at 55. Witness Scott Xu (described by the defence as having been friends with the defendant since seventh grade) stated to investigators, “he’s not in any way a homophobic person.” Supra note 7 at Appendix IV at DA 335.

50 This is not to say that all negative associations with homosexuality are the same. As Lawrence Blum has suggested regarding racism, the term homophobia may have lost some coherence in the wake of social change. Lawrence Blum, I’m Not a Racist but … (Ithaca, NY: Cornell University Press, 2003).

51 Supra note 7 at 6.

52 danah boyd, “Streams of Content, Limited Attention: The Flow of Information through Social Media,” Educause Review (2010), <https://net.educause.edu/ir/library/pdf/ERM1051.pdf>.

53 Supra note 7 at 64.

54 Some scholars have noted that people don’t necessarily use publicly accessible social media with the intent of worldwide exposure. Instead, they often have more particularized social audiences in mind for the social news or status updates that each platform addresses. See danah boyd, It’s Complicated: The Social Lives of Networked Teens (New Haven: Yale University Press, 2014).

55 Supra note 7 at 39–40.

56 Some commentators have thought of circumstances where a heterosexual sexual encounter would inspire interest in order to counter this assumption. Richard Cohen, “Tyler Clementi and the Questionable Wisdom of Hate Crime Laws,” Washington Post, 19 March 2012, <http://www.washingtonpost.com/blogs/post-partisan/post/tyler-clementi-and-thequestionable-wisdom-of-hate-crime-laws/2012/03/19/gIQAlpaENS_blog.html>.

57 Supra note 19 at 22.

58 Ibid.

59 This same legal issue has come up in relation to “revenge porn,” when an ex-lover posts an intimate image without the consent of the victim without alerting her to having done so, but with the obvious intent to harass her indirectly. Danielle Keats Citron & Mary Anne Franks, “Criminalizing Revenge Porn,” Wake Forest Law Review 49 (2014): 345, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2368946>.

60 Gilden, supra note 6.

61 Supra note 7 at 8, citing evidence submitted in Appendix III at DA 191.

62 Ibid.

63 Ibid., at 8–9.

64 Ibid., citing DA 195.

65 Ibid. at 24.

66 Kathryn R. Brown, “The Risks of Taking Facebook at Face Value: Why the Psychology of Social Networking Should Influence the Evidentiary Relevance of Facebook Photographs,” Vanderbilt Journal of Entertainment and Technology Law 14 (2012): 367, <http://www.jetlaw.org/wp-content/journal-pdfs/Brown2.pdf>.

67 Supra note 7 at 9.

68 Ibid. at 40.

69 Out Online: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth on the Internet, (New York: GLSEN, 2013), <http://glsen.org/press/study-finds-lgbt-youth-face-greater-harassment-online>.

70 NJ Rev Stat § 2C:16-1 (2013); Jessica P. Hodge, Gendered Hate: Exploring Gender in Hate Crime Law (Boston: Northeastern University Press, 2011).

71 Beverly A. McPhail, “Gender-Bias Hate Crimes: A Review,” Trauma, Violence, & Abuse 3 (2002), doi:10.1177/15248380020032003; Hannah Mason-Bish, “Examining the Boundaries of Hate Crime Policy: Considering Age and Gender,” Criminal Justice Policy Review 24 (2011), doi:10.1177/0887403411431495; Mark Austin Walters & Jessica Tumath, “Gender ‘Hostility,’ Rape, and the Hate Crime Paradigm,” The Modern Law Review 77 (2014), doi:10.1111/1468-2230.12079.

72 Heidi M. Hurd & Michael S. Moore, “Punishing Hatred and Prejudice,” Stanford Law Review 56 (2004): 1081–1146.

73 Supra note 7 at 29.

74 While it is beyond the scope of this chapter, the defence made a considerable effort to obtain disclosure of evidence of Clementi’s state of mind related to his suicide, including the writings he left behind. The judge consistently denied these requests, supporting the prosecution argument that Ravi was not being charged with causing the suicide and so this evidence was not relevant to the case.

75 Associated Press, supra note 17.

76 Kate Zernike, “Judge Defends Penalty in Rutgers Spying Case, Saying It Fits Crime,” New York Times, 30 May 2012, <http://www.nytimes.com/2012/05/31/nyregion/judge-defends-sentence-imposed-on-dharunravi.html?pagewanted=all&_r=0>.

77 Di Ionno, supra note 2.

78 The defence submitted a statement by Marc R. Poirier, for instance, who provided an academic argument as to why New Jersey’s bias intimidation offences should not apply to what Ravi did, which included (a) that only violent crimes should serve as predicate crimes; (b) that even where non-violent crimes are found to be appropriate underlying crimes, the sentencing enhancements set out in the legislation are only appropriate for violent crimes; and (c) that Ravi’s biases were at most “generally customary, though offensive, behaviours.” Marc R. Poirier, “Statement on Predicate Crimes for Bias Intimidation,” 2 May 2012 at 6, submitted in State of New Jersey v. Dharun Ravi (May 3, 2012) Pros. File #10002681(Superior Court of New Jersey, Middlesex County, Law Division – Criminal Part) Sentencing Memorandum on Behalf of Defendant Dharun Ravi.

79 Gilden, supra note 6 at 360.

Auteur

PhD, is an Associate Professor and Director of the Legal Studies Program in the Faculty of Social Sciences and Humanities at the University of Ontario Institute of Technology (UOIT). Prior to joining UOIT in 2009, she was Executive Director of the Centre for Innovation Law and Policy at the University of Toronto, Faculty of Law. She received her JD degree from the University of Toronto with honours in 2003, and was called to Ontario bar in 2004. She holds a PhD in comparative literature from the University of California, San Diego. Her research interests include privacy, information law, internet law, cyberbullying, and online sexual exploitation of children and youth

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