Rutgers Suicide Raises Difficult Legal Questions
In the wake of Rutgers freshman, Tyler Clementi's suicide, reportedly brought on by the taping of his sexual encounter by other college students, it's worth considering how technology has fundamentally altered our conceptions of privacy. One of the two defendants in this case, Dharun Ravi, used Twitter, ichat, and a webcam to secretly videotape his roommate as he engaged in a sexual encounter with another man. Clementi was so distraught over the distribution of these images over the Internet that he leaped to his death from New York City's George Washington Bridge.
In the wake of Clementi's suicide, Ravi and another woman/student, Molly Wei, have been charged with violating New Jersey's invasion of privacy statutes. Those statutes make it a crime "to collect or view images depicting nudity or sexual contact involving another individual without that person's consent." There is also a separate crime should those images be transmitted. In addition to these charges, gay rights groups have called for Ravi and Wei to be charged with hate crimes as well, alleging that their motivation was based upon Clementi's sexuality.
Whether the defendants are also charged with a hate crime will likely depend on if the state of New Jersey can uncover any evidence that their acts were motivated by Clementi's homosexuality. In making this determination, the state will investigate text messages, emails, and sundry other technological clues to uncover the motivations behind the acts. In the meantime, it's worth considering what Clementi's suicide teaches us about the rapidly shifting arena of cyber crime and how many ways in which an individual's privacy can be invaded that weren't even possible 10 years ago.
Where once an individual student would have had a difficult time invading the privacy of another student, now any student in a dorm can be a victim of this crime. Indeed, while the individuals charged in with this crime may be condemned for their acts, surreptitious recording of an individual without that individual's consent is not uncommon. Last year, ESPN's Erin Andrews became a high-profile victim of secret videotaping while she was in her hotel room. What makes the Rutgers crime unique isn't the crime itself, it's the reaction of the victim to the crime.
And that, more than anything else, points to the dangers inherent in invasion of privacy crimes. The defendants in this case are likely to argue that they were unaware that Clementi would react as he did to their secret videotaping and that they considered this nothing more than a prank. Indeed, the actual crime here has been subsumed by Clementi's reaction to the crime. Imagine that rather than being driven to suicide, Clementi merely turns in these students to Rutgers for violating his privacy.
Do we ever hear about the crime? Does it receive any publicity?
Probably not. The students likely receive probation. At most, maybe they're forced to withdraw from school. That's it.
Instead we're all horrified, justifiably so, by Clementi's reaction when his privacy was invaded. And that reaction, more than anything, should serve as a teachable moment for parents, children, and educators. Do students truly realize the severity of the reactions that their modern acts can provoke? Or has technology so pervaded their lives that the severity of the act itself -- broadcasting someone engaged in a sexual act without consent -- been devalued? Indeed, in an age when celebrities hawk sex tapes and become even more famous than they already were, have we all been desensitized to the idea of what privacy means?
That's a broad question without an easy answer. Isn't the out that we are punishing the defendants for the result of their act more than the actual act itself? And if that's the case isn't that backward? Shouldn't we be treating the crime as severe no matter how the defendant reacts? Otherwise how can we demonstrate that even in the age of Facebook an individual right to privacy still exists?
So what can this case teach us? First, that invasion of privacy is a serious crime regardless of what reaction it provokes. Second, you can't predict how anyone is going to deal with cyber-bullying, harassment, or the invasion of his privacy. Many will cope without any issues. Others, as we see with Clementi, may never be able to escape the wrong that was perpetrated against them.
In our civil courts, that is the non-criminal field of law, the thin-skulled plaintiff rule has existed for generations. Pursuant to the thin-skulled plaintiff rule if you behave in a negligent manner that leads to another individual's injury, you are responsible for all the damages that ensue as a result of your act. That's even though you had no clue that the plaintiff in your situation had a thin-skull and was more susceptible to damage than he or she appeared.
The rule is applied in a criminal setting as well, but in our modern era maybe it should receive a new name, the thin-skinned expectation. From this point forward, you should assume that everything you do to invade someone else's privacy could be the precipitating factor that sets them off on a path of destruction. Did the defendants in this case believe that Clementi might commit suicide based upon what they considered to be a prank? Probably not. Should they have? Who knows. Should every student in America think about Clementi in the future when they consider invading another student's privacy for sport.
It's the only way any of us can learn a lesson from a tragedy.
Clay Travis is an attorney and columnist for FanHouse.com. You can follow him on Twitter here.