« Reviewing the administration of the death penalty in Virginia | Main | Helping a district judge send a sentencing message to unscrupulous landlords »

October 3, 2010

"Bullying, Suicide, Punishment"

The title of this post is the headline of this interesting and very effective piece in today's New York Times discussing the sad cybercrime case that emerged from Rutgers University this week.  Here are snippets:

Tyler Clementi may have died from exposure in cyberspace.  His roommate and another student, according to police, viewed Mr. Clementi’s intimate encounter with another man on a Webcam and streamed it onto the Internet.  Mr. Clementi, an 18-year-old violinist in his freshman year at Rutgers University, jumped off of the George Washington Bridge, and now the two face serious criminal charges, including invasion of privacy.

The prosecutor in the case has also said that he will investigate bringing bias charges, based on Mr. Clementi’s sexual orientation, which could raise the punishment to 10 years in prison from 5.

But the case has stirred passionate anger, and many have called for tougher charges, like manslaughter — just as outrage led to similar calls against the six students accused of bullying Phoebe Prince, a student in South Hadley, Mass., who also committed suicide earlier this year.

What should the punishment be for acts like cyberbullying and online humiliation?  That question is as difficult to answer as how to integrate our values with all the things in our lives made of bits, balancing a right to privacy with the urge to text, tweet, stream and post.

And the outcry over proper punishment is also part of the continuing debate about how to handle personal responsibility and freedom.  Just how culpable is an online bully in someone’s decision to end a life?...

In the Rutgers case, New Jersey prosecutors initially charged the two students, Dharum Ravi and Molly W. Wei, with two counts each of invasion of privacy for using the camera on Sept. 19. Mr. Ravi faces two additional counts for a second, unsuccessful attempt to view and transmit another image of Mr. Clementi two days later.

If Mr. Ravi’s actions constituted a bias crime, that could raise the charges from third-degree invasion of privacy to second degree, and double the possible punishment to 10 years. Still, for all the talk of cyberbullying, the state statute regarding that particular crime seems ill suited to Mr. Clementi’s suicide.

Like most states with a cyberbullying statute, New Jersey’s focuses on primary and high school education, found in the part of the legal code devoted to education, not criminal acts.  The privacy law in this case is used more often in high-tech peeping Tom cases involving hidden cameras in dressing rooms and bathrooms.  State Senator Barbara Buono sponsored both pieces of legislation, and said the law had to adapt to new technologies. “No law is perfect,” she said.  “No law can deter every and any instance of this kind of behavior.  We’re going to try to do a better job.”

Still, the punishment must fit the crime, not the sense of outrage over it.  While some have called for manslaughter charges in the Rutgers case, those are difficult to make stick.  Reaching a guilty verdict would require that the suicide be viewed by a jury as foreseeable — a high hurdle in an age when most children report some degree of bullying.

Besides, finding the toughest possible charges isn’t the way the law is supposed to work, said Orin S. Kerr, a law professor at George Washington University who specializes in cybercrime. “There’s an understandable wish by prosecutors to respond to the moral outrage of society,” he said, “but the important thing is for the prosecution to follow the law.”

The fact that a case of bullying ends in suicide should not bend the judgment of prosecutors, he said. Society should be concerned, he said, when it appears that the government is “prosecuting people not for what they did, but for what the victim did in response.”  Finding the right level of prosecution, then, can be a challenge. On the one hand, he said, “it’s college — everybody is playing pranks on everybody else.” On the other, “invading somebody’s privacy can inflict such great distress that invasions of privacy should be punished, and punished significantly.”...

That is why Daniel J. Solove, author of “The Future of Reputation: Gossip, Rumor and Privacy on the Internet,” said society needed to work on education.  “We teach people a lot of the consequences” of things like unsafe driving, he said, “but not that what we do online could have serious consequences.”

That sounds good, of course, but adults still drive recklessly after all that time in driver’s ed.  And it is easy and cheap to say that “kids can be so cruel at that age,” but failures of judgment can be found almost anywhere you look.

After all, what are we to make of Andrew Shirvell, an assistant attorney general in Michigan who devoted his off hours to a blog denouncing the openly gay student body president at his alma mater, the University of Michigan? His posts include accusations that the student, Chris Armstrong, is a “radical homosexual activist” and a photo of Mr. Armstrong doctored with a rainbow flag and swastika. He told Anderson Cooper that he is “a Christian American exercising my First Amendment rights.” On Friday, the attorney general’s office announced that Mr. Shirvell was taking personal leave pending a disciplinary hearing.

And for anyone eager to add an extra bit of sentencing law spin to this case, I think the bias charges being considered in the Clementi case are based on the statute that was subject to constitutional attack in Apprendi (and thus now requires a jury ruling, rather than just a judge finding, to double the potential punishment.

October 3, 2010 at 11:10 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2013487f01d1c970c

Listed below are links to weblogs that reference "Bullying, Suicide, Punishment":

Comments

Should these kids be prosecuted for invasion of privacy? Sure. There's no way society can say this type of behavior is okay. Should they be prosecuted for anything beyond that, including bias intimidation? I have a hard time justifying that.

The statute (NJSA 2C: 16-1) states that a defendant will be guilty of bias intimidation if "commits an offense...(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation, 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, handicap, sexual orientation, 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 (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, handicap, sexual orientation, or ethnicity, or (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, handicap, sexual orientation, or ethnicity. "

Without condoning their conduct, I still believe that Ravi and Wei would have behaved the same way had they discovered Clementi having heterosexual sex in the dorm. Kids do this stuff, and there's nothing in what has been released (the tweets) that indicate he was attacking Clementi for being a homosexual.

Had Clementi not committed suicide but instead filed a criminal complaint against Ravi and Wei, what punishment would the state seek? Allowing public outrage/moral panic to dictate the policy behind criminal law is wrong. It was wrong when those factors led to homosexuality to be criminalized and it would be wrong now.

Posted by: T.O. | Oct 3, 2010 12:17:02 PM

Beyond laws against invasion of privacy such as unauthorized videos of people in the bathroom or changing clothes, I do not see the bullying.

The video is a neutral depiction of actions. If homosexuality is normal and acceptable, even in the minds of homosexuals, then why off oneself for doing it? The privacy invaders expressed no hostility to homosexuality.

The suicider expressed the ultimate hostility toward homosexuality. He gave himself the death penalty for being caught doing it. Criminal liability for the voluntary act of someone not under their control nor affiliated with them sounds like a violation of their procedural due process rights.

Posted by: Supremacy Claus | Oct 3, 2010 1:05:59 PM

personally i think they both should pay with their lives. their stupidity and action's caused the death of that boy.

Now i also think suicide is stupidy. Long Long LONG before someone manages to drive me to kill myself....said i will kill said idiot FIRST....then of couse i don't need to go..

Posted by: rodsmith | Oct 3, 2010 3:32:49 PM

I pray to God that lawmakers will stop responding to so called "public outrage." Surely, our society can find the wisdom and self control to be able to think things through. I detest what these two college students did. But, responding to public outrage is a worse sin. The laws are already too harsh. I can understand, and I do feel outrage, because a similar act was done to my son, a college freshman. The boy appointed to be his dorm mate, decided the first week that he didn't like my son. So, he posted on the public internet on facebook, "I think he is a virgin, he had a girl in this dorm room, and he didn't have the courage to get her into bed." My son happens to not be a virgin, but that is beside the point. His dorm mate was insinuating that my son was gay. If he had been successful, it could have been the beginning of a year or two of taunting, because, in Kansas, being thought of as gay brings bullying. My son is not gay and doesn't even act effiminate, he has had relationships, and he had done nothing to this dorm mate. But, he didn't kill himself, although his stress level was so high, he did become ill. He took the matter to the director of dorms. Several of his new friends ostracized the bully. My son was given a new room mate who is his good friend. It was learned that the bully had done the same thing in a previous school and had finally been expelled. So, it is bullying. It is bias. But....if this is publiczed and "public outrage" runs its course, law makers will knee jerk react, and make new laws, whereby, young men will do something far less evil, and be caught in a new harsh law. We have gone too far in that direction. I am tired of the parents of victims, who in their genuine grief, go to lawmakers and to reporters who need a juicy story, and get new laws created such as "Jessica's Law" and "Megan's Law" and so on. The new laws hurt and destroy far more young men and their families, than they ever do any justice.

Posted by: DLJ | Oct 3, 2010 6:12:48 PM

DLJ --

Congratulations to your son for a mature and measured reaction. Had I been in his postion, I would have been tempted to employ more emphatic measures. Restraint and refraining from violence, while they are to be preferred, must be difficult in a situation like that.

I trust the bully finished his degree at the University of Antarctica, which is where he belongs.

Posted by: Bill Otis | Oct 3, 2010 6:31:58 PM

In countries with low crime rates despite great poverty, there is something more effective to suppress misconduct. Our kids should learn that and reject all left wing, rent seeking PC, pussified standards of conduct of the vile lawyer traitor.

Your son gets a couple of pals. They put a blanket over his roommate. Then pound him with sticks, a paper weight filled sock, stomp him, kick his ass. I bet dollar to donuts, he never does that again, nor any other knucklehead bully within leagues of the school.

The vile lawyer traitor has totally feminized the productive American male. Reporting is feminine. Self help is masculine and totally effective. If the TA objects, ask if he wants some too. The horrible lawyer has perpetrated the myth that one will be sued and prosecuted for any self help. This mentality caused 9/11. It would have been impossible on the airline of other nations. The males would have taken on the hijackers. Of the people who resisted the shooter at V Tech, every single one was an immigrant. No native offered the slightest resistance, not even yelling or running or hiding or anything.

Instead, the good guys are deterred by the vile lawyer traitor that has taken over the government of this country to plunder it. This effect took out 3000 of our people, and $7 trillion from our economy. This weakness continues to invite attacks.

If you want to prevent one instance of bullying, kick the ass of a bully. If you want to prevent 1000 instances of bullying, kick the ass of an appellate judge. Regular street judges are even more oppressed by these traitors than the public is. This appellate judge is the real traitor. He is the immunizer, protector of the bully and of the criminal predator, and the oppressor and prosecutor of the victim of crime and of bullying.

Posted by: Supremacy Claus | Oct 3, 2010 6:34:05 PM

People commit suicide because they are genetically prone to depression.

Throughout history there are stories of the triumph of individuals and groups over unspeakable torture, both physical and mental. Triumph or defeat and everything in between is an individual reaction that comes from within the "victim".

My heart aches for the parents and loved ones who will miss the promise of a son, brother and friend. We cannot make laws or prosecute to ease that pain, unfortunately some may try.

Posted by: beth | Oct 3, 2010 6:37:04 PM

I read today that Mark Lundsford and his son are trying to get an expungement for the son, so that his name will no longer be on the sex register. The article said this is possible in Ohio. Mark Lundsford is the man who went from coast to coast, seeking revenge for what had happened to his little girl, Jessica. He was used by the news media and by politicians in doing this and it has cost young men, and their families such pain, far past the idea of justice, that I hope this situation could be publicized,by the media, as vigorously as they covered Mr. Lundsford's campaign. Of course we all know, Mark Lundsford's own teen aged son was then convicted of statuatory sex crimes, sentenced, and his name, picture and his personal information was put on the Ohio sex registry. How unjust, if now, Mark Lundsford, now being in a different mood then when he was frothing at the mouth after his tragedy, going from coast to coast, now being in a lenient mood, since his own son got ensnared in the very law his father enabled to get passed, is able to get his son's name expunged, but leaves hundreds of thousands of other people's sons still up there where it will ruin their lives forever. Most states won't expunge, and most people couldn't afford it even if their state did expunge. That is what happens when law makers allow "public outrage" and the news media to decide our justice system.

Posted by: DLJ | Oct 3, 2010 6:37:33 PM

The defendants expressed no animus toward homosexuals.

Is homosexuality, normal and healthy according to the pro-homosexual, pro-AIDS, biased lawyer? If it is, why is there any shame? This vile lawyer wants to privilege and immunize conduct that has assassinated millions of people, starting with Justice Kennedy who changed his vote to do so.

The sole person expressing loathing of homosexuality here was the suicider. He found it so loathsome, he decided he needed to be killed when it was revealed. He pulled a Taliban on himself.

Posted by: Supremacy Claus | Oct 3, 2010 6:50:47 PM

Bullying should be taken far more seriously than it is. I'm a student in college and I've been called "Big Jon" (over 6ft) many times in my life. My brother who's not much shorter than I am at this point, but is eight years ahead of me he and I have had several instances where my brother who would usually be 1 1/2 times my size would get into a very serious fight. He would talk about kids in his class who he didn't like, so much so that I couldn't take it and I had to call him out on it. My brother and I have had many fights (I don't recall ever winning though) but we grew out of that phase as most guys do. I know my brother has been frustrated by kids at his school, but that never gave him a right to act on it (I don't recall my brother ever acting on it, but I didn't live with him while he was in high school). My brother is now 28, he's always been known for his anger and that pisses me off sometimes because some people won't know how good he is because of it.
I think bullying is a very serious issue that needs to be taken far more seriously than it is. If it's not, then we may as well give up on being parents and helping the next generation.

Posted by: Jon | Oct 3, 2010 9:10:11 PM

Bullying is the subject of big government make work, worthless programs. It has a simple remedy. If you are the victim of a bully, you lie in wait with an implement. As the bully passes, you smack him from behind and break his nose. This procedure has full moral and intellectual justification since it will cure the bully. It is mutually beneficial. However, the vile lawyer traitor has immunized the bully, and prevented its proper treatment. No, the entire school must undergo mass indoctrination and group therapy to generate government sinecures.

Beyond the individual remedy, it should become a duty for all who see bullying to beat up the bully, and eventually to kill it, if he does not improve. This remedy should be immunized. There should be open season on bullies and on all criminals, with money rewards for killing them. Instead, there is open season on victims, with good money rewards going to bullies and criminals.

The vile lawyer traitor always sides with evil, and true remedies, namely incapacitation, is almost prohibited. Why does the lawyer always side with pure evil? Evil generates massive lawyer employment. The vile lawyer traitor has an inherent economic conflict of interest. Thus all pro-criminal, pro-bully case law, all lawyer enacted statutes, all lawyer mandated programs of indoctrination of our children are a form of theft. Conflict of interest is the way intelligent, middle class slicksters steal.

Posted by: Supremacy Claus | Oct 3, 2010 9:49:03 PM

i'm with you bill. I'd have ripped him a new and and beat his tail black and blue...then said guess what you are saying i'm gay! guess that means you just got your tail kicked by a queer! let's put that on your damn website!

Needless to say if i EVERY see anything concerning me on your site your a DEAD MAN!

Posted by: rodsmith | Oct 4, 2010 2:13:58 AM

Bottom line, the emotional distress of having your private life disseminated for all to see/ridicule etc. obviously factored into the range of sentencing for this crime. Thus, the results of this crime, i.e., Clementi's suicide, should be accounted for in the sentence. I'd max them out if I were the judge.

And as for foreseeability, there is a criminal law case out there which allows criminal liability for suicide. See Stevenson v. Indiana. I remember it from law school.

Posted by: federalist | Oct 4, 2010 8:34:44 AM

"People commit suicide because they are genetically prone to depression."

That's a tad simplistic.

"The defendants expressed no animus toward homosexuals."

I respect your deep knowledge of all the details of a case that is still under investigation. This includes determining if this is a case of bullying. It might not be, but we don't have all the facts via the media.

I myself was a bit wary about them showing the pictures of the alleged criminals here, putting their photographs (both, what, around 18?) in the newspapers is such an emotionally tinged case seems questionable. It is not like they are accused of rape or anything, but there was suicide, and the details are heinous. But, for instance, do we know the full involvement of the young woman involved?

This is a case where some a person did something heinous but is not "guilty" of the action death. There are cases where a person commits suicide and previously was continually harassed and in effect mentally tortured. This -- bad as it is -- does not reach that level. The article helps us reach a sense of perspective, one not shown in some comments.

Beating up people might not help either. Not everyone is a violent person. The inability to "beat his tail black and blue" is arguably a good thing.

Posted by: Joe | Oct 4, 2010 8:40:56 AM

Suicide shows only a psychological and emotional deficiency. Another person cannot be blamed for one's suicide, no matter how the influence is percieved. And how can there be such a thing as cyber bullying? Turn the damned computer OFF! There, no more "bullying". That is a ridiculous misnomer.

Posted by: ZnaeymvR | Oct 4, 2010 9:46:31 AM

What happened to this kid is sad and awful. No question.

Still it must be asked how, in post-Fourth-Amendment America, can invasion of privacy be considered a crime? Our government has seized the power to spy on any of us at will...with or without reason to suspect we've done anything wrong. Who of us even knows how badly our reputations are being damaged by federal agents poking around asking questions in our banks, doctors offices, libraries, etc.?

It also must be asked to what extent the Rutgers incident was a reflection of a society that only grudgingly tolerates homosexuals at best. The Rutgers kids facing prison sentences in this story were far more likely to have been influenced by the public's obvious enmity toward homosexuals than by any awareness of obscure privacy laws intended to deter their actions.

Can't help but wonder, too, whether Ravi and Wei would have been set upon to this extent if their last names didn't end in i's.

Ultimately, if cruel high school and college pranks are now to be classified as serious crimes, we're going to be needing a lot more prisons.

Posted by: John K | Oct 4, 2010 11:53:03 AM

John K --

"What happened to this kid is sad and awful. No question."

The introductory hat tip is made before we're off to the races blaming everyone but the people who did it. These people also get extra mitigation because their last names end in "i". Do I get extra mitigation because mine ends in "s"?

I knew you considered almost everything exculpatory, but I admit to being taken by surprise by the alphabet.

"Still it must be asked how, in post-Fourth-Amendment America, can invasion of privacy be considered a crime?"

The answer to that question is provided by the facts of this case.

"Our government has seized the power to spy on any of us at will...with or without reason to suspect we've done anything wrong."

The government -- even Obama's government, with which I disagree -- didn't "seize" anything. It has investigative power by virtue of law. If you dislike the law, take it up with Nancy Pelosi. She's been running Congress for four years. Happy with the results?

"Who of us even knows how badly our reputations are being damaged by federal agents poking around asking questions in our banks, doctors offices, libraries, etc.?"

Because I had three jobs requiring clearances, I got a lot of poking done. Oddly, nothing bad seems to have happened to my reputation. This is not because I have lived in a bubble. It's because I'm a normal person.

"It also must be asked to what extent the Rutgers incident was a reflection of a society that only grudgingly tolerates homosexuals at best."

You might consider the possibility that it was a relection of the bigotry of the people who did it, rather than of people who didn't do it. But I agree with your implication that it was done in part because the victim was gay. Of course the major part is that the other two were pretty damn heartless, and that's the problem, isn't it?

"The Rutgers kids facing prison sentences in this story were far more likely to have been influenced by the public's obvious enmity toward homosexuals than by any awareness of obscure privacy laws intended to deter their actions."

That is pure speculation, and implausible speculation at that. Do you mean to say that if they had been told straight-up beforehand, "If you do this, you'll be facing five years in prison" they would have done it anyway??? What's the evidence for that?

If this is not criminal invasion of privacy, there is no such thing. Are you suggesting that these two get no criminal sanction whatever?

Posted by: Bill Otis | Oct 4, 2010 12:39:28 PM

Bill--

"The government ... didn't "seize" anything. It has investigative power by virtue of law. If you dislike the law, take it up with Nancy Pelosi...."

The law until fairly recently protected citizens from intrusive government "investigative powers" in the absence of sufficient cause to suspect wrongdoing. If I were going to take up the loss of that protection with anyone it would be the Bushes, Cheneys and Roves of the world, not Nancy Pelosi.

It was the brownshirts around Bush who gave us the misnamed Patriot Acts. What Democrats who acquiesced are guilty of is cowardice. Fear and anger are easy sells. Republicans are stellar salesmen. Pelosi and others who put careers above the Constitution by helping to trash it did so mostly to avoid having to defend themselves against demagogues accusing them of being soft on terrorism.

"...Because I had three jobs requiring clearances, I got a lot of poking done. Oddly, nothing bad seems to have happened to my reputation."

C'mon, Bill. Unless things have changed dramatically since I was granted a top-secret clearance, the agents who checked your background probably made the purpose of their visit clear to those they interviewed on your behalf...meaning it's unlikely any of those they spoke to believed for even a second you were suspected of wrongdoing.

"Do you mean to say that if they had been told straight-up beforehand, "If you do this, you'll be facing five years in prison" they would have done it anyway?"

No. I don't think they would have done it if they'd known prison was a possibility, and apparently neither do you. But then I believe a lot of Americans end up in prison for actions they didn't know were imprisonable offenses until it was too late.

In fact this case is a prime example of aggressive prosecutors straining statutes and concocting "novel theories" to criminalize behavior that previously was merely immature or cruel or loathsome.

"Are you suggesting that these two get no criminal sanction whatever?"

I'm saying that for Rutgers kids on a promising path to a bright future any number of punishments well short of five or ten years in prison would suffice to cast a pall on their lives they would never be able to lift.

Posted by: John K | Oct 4, 2010 6:18:05 PM

John K --

Thank you for your prompt, straightforward and responsive reply.

1. The Democrats have had both houses for four years. A good chunk of that was with enough of a margin to squelch any fillibuster. I'm not buying the argument that they're cowards or can be pushed around by "fear." The shining example of this is Obamacare. It was known at the time that it was unpopular and there would likely be hell to pay at the next election. But they jammed it through anyway, because a federal takover/redistribution of healthcare has been a Democratic wet dream since FDR. In other words, I must grudgingly but sincerely give the Democrats credit for having the courage of their wrong convictions.

Same deal with the Patriot Act, which arouses far less angst, one way or the other, than people feel about what happens to their health insurance.

But for however that may be, your original argument remains incorrect. The governmental power at issue here was not seized. It was legislated. And as for Pelosi being fearful of weakening it -- who is she afraid of? All three Republicans who live in her San Fransisco district?

"Fear and anger are easy sells."

Complacency and wishful thinking are easier by far.

"Republicans are stellar salesmen."

That's why they did so well in the last two elections.

2. "... the agents who checked your background probably made the purpose of their visit clear to those they interviewed on your behalf...meaning it's unlikely any of those they spoke to believed for even a second you were suspected of wrongdoing."

That's because there was no basis for such a suspicion. Normal adults don't go around stealing, betraying national security or having sex with 13 year-old's, and I'm a normal person.

3. "I believe a lot of Americans end up in prison for actions they didn't know were imprisonable offenses until it was too late."

The phrase "a lot" is pretty ambiguous. I know for a fact that you have to work to get into federal prison. People have a really good sense of when they're getting into something questionable. The two students who secretly videotaped this kid having gay sex, and then put it up on the Internet, could not possibly have failed to know that what they were doing was wrong, not to mention cruel. They earned punishment.

I don't see any "straining" of the statute. If this is not an invasion of privacy by a non-governmental actor, and for a bad purpose, what in the world would be? This is way, way worse than being a Peeping Tom.

4. "...for Rutgers kids on a promising path to a bright future any number of punishments well short of five or ten years in prison would suffice to cast a pall on their lives they would never be able to lift."

If you don't want a pall over your life, don't pull a stunt like this. Did they think this gay kid had no feelings? That his life was just a plaything for them?

I agree with the defense lawyers who say the suicide was unanticipatable, and that they are not properly held accountable for that. But the pain and degradation were FULLY anticipatable. Indeed it was precisely to degrade him that they did it (why else put it up on the Internet?).

It was a bad, criminal act undertaken with bad intent. It had horrendous consequences. Their immaturity is fairly taken into account, but they have still fully earned a criminal record.

Posted by: Bill Otis | Oct 4, 2010 9:17:56 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB