On March 16, 2012, former Rutgers University student Dharun Ravi was convicted of 15 charges, including one for bias intimidation (AKA “hate crime”) in the Middlesex County Superior Court (New Jersey). The most serious charge was bias intimidation, as it carries a 10-year prison sentence. It reportedly took an hour for Judge Glenn Berman to instruct the jury on what it needed to find in order to support a bias intimidation conviction.
The charges arose from Ravi’s undisputed involvement in the invasion of his late dormitory roommate Tyler Clementi’s privacy in 2010. It had become known to Ravi that Clementi was meeting men online and filmed an encounter between Clementi and an unidentified man on Ravi’s webcam. He had announced to his Twitter followers that they would be able to watch the video live through his webcam. Clementi became aware of this, notified the campus authorities, requested a new roommate, and eventually took his own life three days later by jumping off the George Washington Bridge. This case presented a particularly difficult challenge as Ravi’s motive was the central issue and he did not take the stand. That left his motive to be determined by the jurors based on his online behavior, his counsel’s arguments, and Clementi’s reaction.
After Apprendi v New Jersey, hate crime laws as sentence enhancements have fallen by the wayside, and states have reacted by having juries (or judges in bench trials) make a determination of fact as to whether the accused acted with the intent to intimidate a member of a protected group based on that individual’s status as a member. New Jersey is such a state.
Its bias intimidation statute includes protections from offenses committed based on the victim’s sexual orientation. It provides several base offenses; the one relevant to Ravi’s case was invasion of privacy. It also gives the trier of fact a “permissive inference,” where once it has been proven that the defendant selected the victim because of their identifying group, the trier can infer that the defendant’s actions were meant to intimidate.
In this case, the parties presented to the jury that it all began when Clementi asked Ravi for the room until midnight. Ravi left and then loaded up a feed from his webcam which was still in the room. Through the cam, he witnessed Clementi engaging in gay sexual behavior. He later tweeted that he “saw him making out with a dude. Yay.” Two nights later, Clementi asked for the room again, and Ravi tweeted to his followers, daring them to watch his webcam feed. What it likely came down to for the jurors as to bias intimidation were questions like these: “Would Ravi have dared his followers to watch had it been an ugly girl? Would he have tweeted, ‘I saw my roommate kissing a fat chick. Yay.’?”
Ravi’s counsel should never have let the issue be framed in that manner – or if it was inevitably framed, they should have made the answers a clear resounding “yes.” They made too many contradictory arguments: first that he had no bias against gays; then that “he was ‘a kid’ with little experience with homosexuality who had stumbled into a situation that scared him” (paraphrased by the New York Times); that he just set up the webcam in order to make sure Clementi’s guest did not steal any of his stuff; and finally admitting he did it to film Clementi, but just because he made a stupid decision, not because he was biased. Bottom line, Ravi’s defense strategy failed. He did not frame the issues to give the jury the opportunity to decide that he was an inconsiderate jerk, engaging all sorts of other unseemly behavior; behavior that was not “hate”.
In no small part due to defense counsel’s inability to 1) show lack of intent to intimidate, 2) focus on the fact that no one other than Ravi ever saw Clementi’s acts, 3) remind the jury that Ravi did not “out” him, and 4) downplay the emotional and unfortunate end result, the jury determined that they could infer from Ravi’s decision to invade Clementi’s privacy in that manner made it reasonably likely that he meant to intimidate him based on his sexual orientation. Great deference is given to juries in their findings of fact; therefore Ravi’s attack must focus on the statute. It will be interesting to see on appeal if Ravi is able to show that the statute’s permissive inference provision violated his due process by using a lesser standard than beyond a reasonable doubt. He will not have an equal protection argument as New Jersey’s statute is class-neutral – both the majority and minority classes are protected in the statute.
Michigan has an ethnic intimidation statute; although it includes religion and gender, it does not include sexual orientation. It also does not provide for base offenses that do not involve contact or direct threats. Therefore, Ravi could not have been convicted in the same manner had the offense been committed in Michigan. There is no “permissive inference” and the maximum punishment is 2 years in prison.
If you or a loved one has been charged with any crime, it is imperative that you seek out highly qualified, competent counsel. Where your liberty is at stake, only the most qualified and experienced advocate can properly defend you against these charges. As this verdict shows, how a jury interprets the facts of your case can very well determine the outcome; you need attorneys that make clear – not contradictory – arguments to show jurors your side of the story.
If you have been convicted at trial, the fight is not over – in fact, it may have just begun. You have many post-conviction options available to you: the right to file a motion for new trial, a motion for a Ginther hearing challenging your lawyer’s ineffective assistance of counsel, an appeal to the court of appeals, a state 6500 motion, and ultimately 2254 habeas petition in federal court. We at Kirsch & Satawa, P.C., have been defending the rights of criminal defendants for the better part of 20 years, both at trial, post-conviction cases and appeals. We have the experience, expertise, zealousness, and resources to properly defend you against the accusations of the state, or challenge a conviction that has already been entered against you. We encourage you to contact us immediately to discuss your case.
Lisa Kirsch Satawa practices in the area of criminal defense, specializing in sex crimes. She is a member of the National Association of Criminal Defense Lawyers, the board of Directors for the Criminal Defense Attorneys of Michigan, and has lectured extensively on defending allegations of criminal sexual conduct not only throughout Michigan, but all over the country as well.