The bias-crime conviction of Rutgers University student Dharun Ravi for intimidating fellow student, Tyler Clementi (who soon after dove from the George Washington Bridge) leaves me in a strange place.
I'm pleased his jury found Mr. Ravi guilty after he turned down a plea offer that would have largely resulted in community service. That Mr. Ravi had a clear hand in Mr. Clementi's taking his life after Mr. Ravi electronically spied on him in his dorm while the former was with another man and then broadcast the intimacies on the net was never in question. What his lawyers questioned and asked the jury to buy was that what Mr. Ravi did didn't amount to criminality but was a contemporary version of behaving like a more-or-less typical college jackass prankster and, they argued, we don't consider that criminal.
Except that a young man did die and the jury returned a resounding guilty verdict.
I've no doubt this verdict will not only serve as legal precedent, but it will force college and university deans throughout the country to augment the guidelines and rules and the tech-use statements all students must sign. Some schools (middle and high schools, too) may well have already revisited their student handbooks when news of Mr. Clementi's suicide broke in 2010. When simply speaking offensively online can be shown to have contributed as active bullying and pretty directly to a death, that speech is not necessarily so simple and the law isn't necessarily required to protect that speech. If Good does come from this horrid and sad incident, that understanding and the handbook revisions will be the Good. The verdict, too, may well serve as a check on the urge to translate into action whatever motivates people who play so loosely with others' lives. I'm pleased Mr. Ravi may now serve a prison term and that he may well be deported to India, his home-nation.
At the same time and as my longtime readers know, I'm not in favor of hate-crimes laws and our national life since the 2010 election serves only to strengthen my view.
Hate-crimes laws are a mistake however well-intended.
Most of my readers also know that I'm a writer and an activist in the LGBT struggle for thoroughgoing legal equality. As some of you also know, I'll deliver on 21 April the keynote at the Washington, DC leg of a series of close to thirty world-wide Equality Marches and Rallies to be held that day. I will do that with conviction and verve and hope, as my writing/activism would lead anyone to see.
Nevertheless I think hate-crimes laws are a mistake because they criminalize thought and not just actions -- they turn thoughts, in fact, into acts and deem some ideas despicable enough to add years to sentences for criminal acts (such as battery and such as intimidation).
I have two concerns.
First and more important we ought not under our Constitution criminalize ideas no matter how hateful, shameful, filthy. We should be about criminalizing bad acts and punishing them hard and not the social ideas that may underlie them no matter how odious. Throw the bum in prison, yes, force restitution if at all practicable, yes, but do that for what the bum actually does, not for his ideas, however stupid and vicious.
I'd say this about people who target gays, Jews, black people, any traditionally or newly targeted group. Adding years to a traditional sentence because we deem it a hate-crime may dissuade other hateful people from committing sickening acts but to date there is no indication that hate-crimes legislation does that. As years go on, this may well change and I'd like to follow available data over time. I am, however, skeptical. There is no less of a collective murder and attempted murder rate in the states with the death penalty than in the states without it. It seems hard, then, to think that adding five years to a battery sentence because the bad person can be shown, say, to hate Jews, will deter assaults on religious minorities.
Second, protecting groups that have been unduly afflicted may seem laudable, and in concept, of course, it is. Legislatures and Congress, though, as we have seen in the past few years, are (I'll be kind here) at best quirky and can take on very nasty, hateful causes in the guise of decency.
Progressives ought to realize that the vagaries of cultural change and the whims of legislatures are such that it is hardly only we who have a lock on this.
Is it that tough to imagine asinine state legislatures calling all or some abortions a hate-crime, characterizing women who choose to exercise their constitutional rights as "hateful of innocent life"? Before you answer, think on all the lunatic legislation that has come out of Nebraska, Florida, Texas, and other states since 2010. In a nation where states such as Arizona are now considering legislation that would force women to get doctors' notes showing that birth control pills were prescribed for something other than birth control...in such a nation as ours is now, is a hate-crimes provision in some wacky and highly restrictive reproductive-health law so unthinkable?
Do you honestly think Progressives are the only people who can deploy bias/hate-crimes legislation? Do you really think it's impossible for a regressive legislature to use such laws to target the very same groups Progressives brought hate-crimes laws into existence to protect? Why, for instance, couldn't the South Carolina or Idaho legislature write a hate-crimes law to add years to the sentences of people whom we well might argue were defending themselves against rather disorganized but known Klan-like hooligans? Given the last few years of legislating in the states, how can any Progressive imagine that we've now and for good cornered the market on hate-crimes laws' possibilities?
I am, as I say, pleased that the young man who so clearly contributed to Tyler Clementi's death has been found guilty of intimidation. I'm pleased the precedent's been set. I'd be even more pleased were he to have been found guilty without resort to, without reliance on, bias/hate-crimes laws. They strike at the heart of our commitment to freedom of thought by turning ideas into crimes, they may offer minorities no added safety, and they may be used effectively by very awful people who do not share a progressive, expansive world-view.
We need to punish and punish hard people such as Dharum Ravi. We need to punish them for their bad acts, not for their ideas.