By Julia Chapman, J.D. Candidate

As the common name would suggest, the prosecution of a hate crime may be charged with emotion. A September 2010 student suicide at Rutgers University has thrust the issue of “hate crime” – or bias crime – laws into the public and legislative spotlight.

On September 9, 2011, a New Jersey judge declined to dismiss the charges against Dharun Ravi, ruling that the prosecutors had provided adequate evidence to the grand jury to support the fifteen charges against Ravi, which include multiple counts of invasion of privacy, bias discrimination, and hampering the prosecution.

Ravi’s charges stem from the September 19, 2010, incident at Rutgers University, in which Ravi set up a webcam in the dorm room he shared with fellow Rutgers freshman Tyler Clementi, situating it to record interactions between Clementi and his male visitor. Ravi left the room with the webcam providing a live-stream of Clementi and his visitor shirtless and kissing in the dorm room, while Ravi watched online from the room of his grade-school friend and classmate, Molly Wei. As the encounter was being broadcast, Ravi posted a Twitter update stating: “[r]oommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.” Wei, who is not facing charges, has agreed to testify against Ravi. Theindictment alleges that Ravi also attempted to record Clementi two days later, but was stopped when Clementi discovered the camera.

On September 22, 2010, Clementi took his own life by jumping off of the George Washington bridge that spans between New York and New Jersey. The charges do not connect Ravi’s actions to Clementi’s suicide, but they do assert that Ravi recorded Clementi’s encounter – and thus invaded his privacy – based on his sexual orientation.

According to the Middlesex County prosecutors’ office, after Clementi’s death and during the investigation Ravi altered the Twitter update that had alerted others to the web cast of Clementi.

In total, Ravi faces fifteen charges: two counts of invasion of privacy, two counts of attempted invasion of privacy, four counts of bias intimidation, three counts of tampering with physical evidence, three counts of hindering apprehension or prosecution, and one count of witness tampering.[1] A grand jury in Middlesex County, New Jersey, indicted Ravi on April 20, 2011; he was arraigned on May 23.  

The most serious of these charges are the three counts of “bias intimidation,” New Jersey’s hate crime charge, originally adopted (when) and amended (when). The law, relevant to Ravi, reads:

a. A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5,

(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or

(2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or

(3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that . . . (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

N.J. Stat. Ann. § 2:C 16-1 (West 2008). Invasion of privacy, of which Ravi is charged with two counts, is a crime specified as a trigger for the bias invasion charges. By charging Ravi with bias intimidation in addition to his other charges, the indictment makes it possible that he will be sentenced to five to ten years in prison, “as opposed to the probation that would probably have resulted if Mr. Ravi were convicted only on the earlier counts.”

Proving the bias intimidation charge turns on Ravi’s knowledge of Clementi’s sexual orientation, as well as his intent to intimidate or knowledge of the potential for intimidation based on Clementi’s sexual orientation. So, victimizing someone who happens to be gay, but not choosing that victim because of his sexual orientation, is not a violation of New Jersey’s bias intimidation statute.[2]

The New Jersey bias intimidation law is based on a “discriminatory intent” model, which defines the crime “in terms of the perpetrator’s discriminatory selection of his victim.”[3] Thus, the fact that the victim selection was made on sexual orientation, race, or other group is sufficient to show intent, and it is unnecessary to show whythat victim selection was made.[4] For example, “[i]f the offender assaulted a black victim, the question is whether the offender had the intention of assaulting “a black person” or whether the offender merely intended to assault “a person.” Motive is thus irrelevant to the discriminatory selection model of bias crimes.”[5]

Prosecutors are claiming that the buildup to the bias intimidation began when Ravi learned his roommate was gay before moving to Rutgers University and announced it over Twitter.

In addition to being the most threatening charge to Ravi in terms of potential penalties, the bias intimidation charge has generated the most public discussion and scrutiny. The initial reaction to Clementi’s suicide was “swift and widespread,” and as the case against Ravi has developed, so have opinions on everything from the severity of the charges against Ravi to the presence of bullying in society as a whole. New Jersey has passed sweeping legislation targeting bullying in schools – the Anti-Bullying Bill of Rights – in response to Clementi’s suicide, and similar legislation titled the Tyler Clementi Higher Education Anti-Harassment Act has been introduced in the U.S. House of Representatives.

“Technically, Clementi’s suicide is irrelevant to what Ravi has been charged with, but it colors everyone’s point of view,” Marc Poirer, a professor at Seton Hall Law School, told the New Jersey Star-Ledger.

With the charges against Ravi standing, it will be interesting to cut through the cloud of emotion and politics that surround the case and focus on the burden the prosecution faces in showing not only that Ravi was aware of Clementi’s sexual orientation, but that he invaded his privacy because of it.