My national reputation on gay rights law seems to stem from having written a provocative law journal article and appearing at an East Coast law school's symposium on anti-LGBT bullying, suggesting provocative ways for bullied and bullycidal queer youth to combat the hostile violence they face at school. I've discussed the bullycides of queer kids such as Seth Walsh and others, but any substantive mention of Rutgers University student Tyler Clementi's suicide was noticeably missing from my discussion.
My focus on anti-queer bias typically resides in public schools, where students are compelled by law to attend the very places where their anti-queer bullying occurs by students, teachers, administrators, and others. But Tyler Clementi was a college student. And Tyler's roommate, Dharun Ravi, not only employed a webcam to spy and broadcast to the Internet Tyler's gay sex acts but also tweeted and texted that third parties should watch another viewing of Clementi's reasonably private activities. Following Ravi's actions, Tyler ultimately killed himself, jumping from the George Washington Bridge.
Today, following several days of deliberation and weeks of testimony, a jury of seven women and five men found Ravi guilty of a number of crimes, including a) invasion of privacy, b) tampering with physical evidence (deleting tweets and texts relevant to the police investigation), and c) hindering apprehension or prosecution (lying to police, preventing a witness from providing testimony, attempting to influence another witness' testimony).
The jury also found Ravi guilty of bias intimidation enhancers, as Ravi acted "under circumstances that caused Tyler Clementi to be intimidated, and considering the manner in which the offense was committed, Clementi reasonably believed that he was selected to be the target of the offense because of sexual orientation" and "with purpose to intimidate Tyler Clementi because of sexual orientation" (commonly known as "hate crimes").
Unsurprisingly some media outlets already are saying that today's verdict is causing people to question the effectiveness of bias crimes laws. Although I'm opposed to bias ("hate") crimes laws in general, so long as hate crimes laws exist for one group of potentially targeted people (religion and race, for example), then all potential targets of violent crime (queer people, for example) should be able to avail themselves of similar laws. And to those who claim that hate crimes laws and ordinances punish thought, well, sure they do, but as any first-year law student will tell you, any crime essentially requires both actus reus and mens rea -- an act and a motive/thought. Without such a motive requirement, we wouldn't have penalty differences, for example, for premeditated murder and reckless vehicular homicide. So please refrain from the thought-police talking point.
Secondly, the immediate aftermath of Tyler's suicide evidenced that anti-bullying laws don't work. Specifically, Tyler's death helped spark New Jersey governor Chris Christie to sign into law the fourth round of amendments (in fewer than nine years) to New Jersey's anti-bullying statute that has ineffectively sought to protect public K-12 students (i.e., the law would have nothing to do with someone in Tyler's position) since 2002. Given that state anti-bullying laws simply don't work, efforts to have a federal anti-bullying laws are misguided and a waste of critical resources that could be deployed to more workable solutions.
Thirdly, and quite disturbingly, Ravi's defense lawyers used a tired version of the disgusting "gay panic" defense. As The New York Times indicated, "Mr. Ravi's lawyers argued that [Ravi] was 'a kid' with little experience of homosexuality who had stumbled into a situation that scared him." In other words, criminal defense lawyers often argue that when presumably straight young people encounter queer people, the law should permit that young straight person's visceral reaction to a queer person to justify or mitigate a crime committed by the straight person that affects the queer person. Replace "queer person" with a lexical unit describing any number of other minority groups, and you'll likely see the absurdity of permitting defense lawyers to employ this tactic, whose prejudicial effect can far outweigh any probative value.
What does all of this mean?
Based on the evidence that I've seen, little doubt exists in my mind that Ravi acted based on Tyler's sexual orientation. And so long as we have hate crime penalty enhancers for bias crimes that target peoples' religion or race or other factors, we ought to have penalty enhancers for crimes targeting queer people.
We also need to honestly conclude that from New Jersey to Connecticut to Arkansas to elsewhere, anti-bullying laws haven't worked. Thus no reason exists to think that any federal anti-bullying law would better the situation. Anti-bullying laws serve to promote the politicians who back these feel-good measures that are filled with obstacles for those students actually bullied. Furthermore, in an era in which queer peoples' sexual orientation is viewed as religious bullying, are you really sure that you'd want a federal anti-bullying law enforced by, say, a Santorum administration's Department of Justice (perhaps against you or your friends or family for religious bullying)?
Finally, judges need to stop allowing a gay panic defense in their courtrooms. Many juries thankfully see through the tactic. But in an age in which queer adults are no longer criminals or considered mentally ill by the DSM, or barred from openly defending our country, or prohibited in many states from sharing the rights and obligations of marriage, the attempted defense that queer people somehow, some way, remain so repulsively different in the eyes of courts to allow criminal defense lawyers to justify their clients harming queer people simply for being queer remains a disgusting tactic allowed by the justice system in general, and a damning indictment of the lengths to which the criminal defense bar, in particular, will go in overstepping zealous representation of a client.
Today's jury verdict marks yet another sad chapter in the history of exploiting, demeaning, and harassing gay men to death. Instead of having Tyler Clementi and Dharun Ravi as contributing members of our society, Tyler is dead, and Ravi is likely headed to prison for years, or deported to India. And for what? Surely not a discussion of bias crimes, anti-bullying laws, and gay panic defense.