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Wednesday, September 14, 2016

State v. Dharun Ravi: The Appeal

In my last post, I summarized some of the basic facts of the Tyler Clementi/Dharun Ravi story. After he was convicted on all counts, Mr. Ravi appealed his convictions. He made various arguments, but his appeal was given an enormous boost by the 2015 New Jersey Supreme Court decision in State v. Pomianek, 221 N.J. 66 (2015), which declared unconstitutional a key statute upon which Mr. Ravi's conviction was based.

N.J.S.A 2C:16-1(a)(3) states:

A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of [certain specified] offense[s] ... 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, disability, sexual orientation, gender identity or expression, national origin, 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, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (emphasis added).

This provision was the basis for 4 of the 15 counts in the State's case against Mr. Ravi (Ravi, 2-4). Related evidence also permeated the prosecution's case, including counsel's moving closing statement (45-48). But on March 17, 2015, in Pomianek, the New Jersey Supreme Court declared the provision unconstitutional: it was void for vagueness in violation of the Fourteenth Amendment.

Pomianek involved several workers at the Gloucester Township Department of Public Works. The defendants, all white, and the victim, a person of color, were assigned to an old garage that Public Works used for storage. Inside that garage was a large metal cage that could be padlocked closed. The workers had been "horsing around" in the garage, including in and near the cage. As part of a ruse, one of the defendants approached the victim and told him that their supervisor needed some supplies from the cage. Once the victim was inside, the defendant closed the cage door and locked it. A number of workers started laughing, and one of the defendants said, "Oh, you see, you throw a banana in the cage and he goes right in, which triggered more laughter among the men." The victim felt there were racial overtones to this statement. Another worker unlocked the cage door within 3 to 5 minutes. The victim testified that he felt "humiliated and embarrassed." After the victim was released, the defendant was heard saying, "You all right, buddy? We were just joking around."

The defendants in Pomianek were charged, among other things, with bias intimidation in violation of 2c:16-1(a)(3). The jury convicted them on those counts because, considering the racist overtones of the "banana" comment, the victim could reasonably believe that the act was committed on the basis of race.

The problem with this provision was that unlike every other bias crime statute in the country, this law was based on the state of mind of the victim, not the intent of the defendant. The New Jersey Supreme Court concluded that this violated the Fourteenth Amendment. A core element of due process is that a law must clearly define forbidden conduct so that individuals can tailor their behavior to conform with the law. Section (1)(a)(3) did not do that. By hinging guilt on what is going on in the victim's mind as opposed to the defendant's mind, the statute does not put a "reasonably intelligent person on notice when he is crossing a proscribed line."

Based on Pomianek, any part of Mr. Ravi's conviction based exclusively on (a)(1)(3) was void as a matter of law. But, according to the Appellate Division, evidence of Tyler's perception of the events was a "pillar" of the prosecution's case (41). It came up often, including in the closing statement. In fact, it came up so often that it "render[ed] any attempt to salvage the convictions under the remaining charges futile." It therefore was "unreasonable to expect a rational juror to remain unaffected by this evidence" (6). Evidence of Tyler's state of mind was prejudicial and not harmless beyond a reasonable doubt. As such, the court overturned Mr. Ravi's conviction in its entirety.

I am not so easily convinced. The Fourteenth Amendment does not protect people from punishment enhancement based on their indifference and willful ignorance to the plight of their victims. "Bias" should be understood as more than just stating, "I hate gays." But let's assume that Pomianek is correctly decided. The statute was poorly worded; the trial judge noted that. And it is hard to imagine convicting someone of a bias crime without any evidence of bias. There was, however, a lot of evidence that Dharun Ravi existed in a contributed to a culture of homophobia that discriminated against Tyler and devalued his life in the eyes of others. I will discuss this point in my next post.

Though we were all shocked by Tyler's suicide, it is not clear that turning to the criminal law is always the right answer. The New Jersey legislature had good intentions: it wanted to recognize that the pain of the victim, the monstrosity of the attacker, and the social context in which attacks occur matter. But maybe those considerations are best left for tort law. Clearly, evidence of the gravity of the harm and the homophobic context of Mr. Ravi's conduct could be important in a civil case against him.

Stay tuned for more! 


Posted by Ari Ezra Waldman on September 14, 2016 at 09:00 AM in Criminal Law, Current Affairs, Information and Technology, Torts, Web/Tech | Permalink


Well, this notice theory doesn't quite make sense to me and seems muddled. The statute made it a crime to act in such a way that causes intimidation and a reasonable belief on the part of the victim as to the defendant's motives. Murder statutes make it a crime to commit an act that results in another's death; of course, the act must be of a kind that could foreseeably cause death, must usually be intended to at least cause serious injury, but a murderer need not intend death or know with anything remotely approaching certainty that his act will cause death. And no one would say that this is a problem, that a murderer "can't tell" when he's crossing a proscribed line into murder because there's no telling ex ante if his victim will die. So where is the problem with a statute that says that, (1) if you commit a series of listed offenses that (I'm assuming) have the tendency to intimidate, and you do, in fact, cause intimidation, (2) and if you act in such a way that the victim could reasonably form a belief that you're acting on the basis of bias (which is something you can ascertain ex ante - whether someone could reasonably ascribe your conduct to bias), and the victim does, in fact, form that reasonable belief, you are guilty of a crime? You know when you're potentially crossing the line - when you commit an offense that the legislature thought had a tendency to intimidate, and when you act in such a way that your conduct can reasonably be ascribed to bias. Whether you successfully cause intimidation and attribution to bias just goes to whether your acts cause the requisite harm that complete the crime of bias intimidation. The fact that that harm might be concealed from the defendant (that is, he can't tell what intimidation or impressions he's caused as to his motives) seems irrelevant, as the harm a defendant causes has nothing to do with conforming his conduct to the law, and isn't in the defendant's control; what the defendant needs to be on notice of is what *acts*, should they cause a certain harm, are proscribed. I apologize if I haven't put this altogether clearly, but I believe I'm right.

Posted by: Asher Steinberg | Sep 14, 2016 2:21:44 PM

There was, however, a lot of evidence that Dharun Ravi existed in a contributed to a culture of homophobia that discriminated against Tyler and devalued his life in the eyes of others. I will discuss this point in my next post.

Your problem is that you want to make it a criminal offense for Joe Average to lampoon the preferred mascots of the liberal haut bourgeois. Ravi's conduct was asinine and adolescent petty-cruel, but Ravi was under no proper obligation to extend any esteem to Tyler Clementi. As for your other case, in New York, unlawful imprisonment is a crime. The prosecutor might or might not bother to bring charges. That they told bad jokes while they pranked him should be of scant consequence.

Posted by: Art Deco | Sep 14, 2016 1:33:04 PM

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