Failures of Law

A brief word: I’m no legal scholar, and I invite DUFL readers and contributors with legal backgrounds to weigh in on this post, but it is a sad state of affairs when a law degree is needed to understand or discuss this country’s legislation.

On September 22, 2010, Tyler Clementi, a student at Rutgers University, committed suicide by jumping from the George Washington Bridge. His roommate, Dharun Ravi, was accused of setting up a “viewing party” to spy on Clementi’s intimate encounter with an older gay lover the evening prior. Last Friday, Ravi was found guilty of multiple counts of invasion of privacy, witness tampering, evidence tampering, and bias intimidation. For his homophobic actions, Ravi faces up to 10 years in prison.

On February 26, 2012, George Zimmerman, a crime watch volunteer from Sanford, Florida, confronted, shot, and killed a “suspicious” black male in a hooded sweatshirt in his neighborhood. The victim was a 17-year-old high schooler named Trayvon Martin. Martin was armed with a bottle of ice tea and a bag of Skittles. For his racist actions, Zimmerman cited self-defense and has faced no consequences.

How is it that Ravi faces up to 10 years in prison for cyber-bullying while Zimmerman has avoided arrest altogether for what seems like cold-blooded murder?

Racism seemed too trite an answer, and so I did some research. What I found out about the laws that exist in New Jersey and Florida was quite shocking.

The state of New Jersey has a bias intimidation, or hate crime, law that was adopted in 2001 and amended in 2008. Hate crime legislation is already controversial, since it borders on criminalizing thought or speech. However, in certain cases, it can be useful; a burning cross placed on a lawn, for example, is worse than mere trespassing or damaging private property. New Jersey’s bias intimidation law has been previously used in cases of assault, severe vandalism, and other acts of violence. Ravi’s trial was the first time that it’s been used in an invasion of privacy case.

The language of the statute is as follows:

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 an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5,



(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, 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, disability, sexual orientation, gender identity or expression, national origin, 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, 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.

I bolded a few key words in the statute to highlight the following: during the trial, that Judge Glenn Berman had to define the words “intimidate” and “purpose” for the jurors. After the trial, Judge Berman said the following: “I’ve read the statute and read the statute more times than I can count. I’ve studied it. The statute, to me, is muddled. If I had written it, I would have written it differently. But I didn’t write it. The Legislature did.”

In short, because of “muddled” language, a foolish young man may lose up to ten years of his life.

The state of Florida passed the “Stand Your Ground” law in 2005, the first in the nation. This law is an extension of the Castle Doctrine, which comes from 17th century English common law. What the Castle Doctrine says, essentially, is that you could use deadly force to defend yourself in a public place only after retreating as far as possible; in your home or “castle,” however, you can use deadly force, no retreat necessary. When the Castle Doctrine crossed the pond into America, some courts expanded it to what’s known as the “true man” doctrine: “a true man, who is without fault, is not obliged to fly from an assailant, who by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.” Now you could use self-defense not just in your home, but “in a place where [you have] a right to be.” The “true man” doctrine actually plays a key role in domestic violence disputes. After all, a woman cannot “retreat” or escape from her home and must use self-defense as a primary recourse.

What Florida’s “Stand Your Ground” law does is to completely bring the “true man” doctrine into the public sphere, saying that retreating is no longer necessary as an option. You could literally shoot first and ask questions later.

Now, as fellow DUFL blogger Mike pointed out, Rep. Dennis Baxley, the prime sponsor of the “Stand Your Ground” law, argues that “there is nothing in the castle doctrine as found in Florida statutes that authenticates or provides for the opportunity to pursue and confront individuals.” Senator Durrell Peadon, who also sponsored the law, said that Zimmerman “has no protection under my law.” Unfortunately, the language of their law doesn’t reflect this:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

There is no language that says the law does not apply if one person pursues or confronts another, so long as he or she is attacked. Then, any person can use deadly force when “he or she reasonably believes it is necessary.” In a deadly exchange with no witnesses, who attacked first is up to the word of the last one standing. Moreover, the law says that deadly force can be used “to prevent the commission of a forcible felony.” So, based on the letter of the law, Zimmerman is justified in shooting Trayvon Martin if he, Zimmerman, “reasonably believes” that it is necessary to prevent crime. The law essentially legalizes vigilantism.

As one can imagine, the vague language of this law is extremely subjective and has led to multiple instances when shooting someone unarmed has not led to charges; unfortunately, Trayvon Martin isn’t the first. As the New York Times points out, the law is used by gang members, drug dealers, road rages, and drunkards embroiled in bar arguments. It’s a law enforcement nightmare.

So to recap: in New Jersey, we have a judge handcuffed by the “muddled” language of a statute, and in Florida, we have a piece of law whose language literally lets somebody get away with murder. I’m certainly that the two pieces of legislation were passed with the best of intentions. Prejudice and discrimination are anathema to a diverse society, and hate crime legislation seeks to address certain forms of prejudice and discrimination. And laws founded on the Castle Doctrine make sense in certain circumstances, as in the case of legal recourse for battered women.

But well-meaning laws poorly enacted have serious, lethal consequences. Hate crime and anti-bias legislation with vague language neither provides justice for the discriminated nor informs the discriminator’s ignorance. And legal recourses that make sense in one’s home don’t always make sense in public spaces. Once these are made law, however, we are unfortunately bound by them until the laws change, even when the errors in the laws are apparent. Ours has always been a nation more infatuated with procedures than justice. When trapped by our procedures, however, we end up with foolish, irrational outcomes.

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19 Comments on “Failures of Law”

  1. Wayne says:

    I agree that your procedures have trapped our nation with foolish and irrational outcomes.

    But, if prejudice and discrimination is anathema in a ‘diverse’ society, why was Ravi forced to live with a homosexual room mate?

    Or, is the society that discriminated against Ravi’s lifestyle not responsible for its choices?

    Ravi clearly couldn’t handle society’s choice with his lifestyle.

    And what does any of that have to do with battered women?

    I realize the aid of battered women was the original battle cry of the progressive movement. But, that movement has caused many more battered women today than it has ever saved. IMHO.

    Did you really write that lethal force against this black teenager would have been ok for a woman, but not for a man? Personally, I think the man was wrong. But, I am looking at your logic. And it seems to be that you are writing it is ok to murder if you are a woman, but it is not ok for a man to defend in self defense.

    In fact you seem to be going even further than that. You seem to write that we must encourage women to use that ‘legal’ recourse if they feel battered.

    Again, I think this man did not have a need to defend himself.

    But, to equate stand your ground with protecting battered women does not seem logical. She already has ‘castle doctrine’ in most of the states with ‘stand your ground laws.’

  2. Jonathan H. says:

    Hi Wayne,

    I see how what I wrote seems unclear; I’ve tried to edit my post for clarification.

    In regards to Ravi being forced to live with a homosexual roommate, he could have sought a room change. I’m a little confused as to what you mean by Ravi’s lifestyle. Do you mean that society discriminates against Ravi’s homophobia by assigning him a gay roommate?

    As for the point about battered women, not all states adopted the castle doctrine or the true man doctrine when it came to women who were the victims of domestic violence for a long time. I’m having a hard time tracking down statistics, but “According to several authors on the issue of violence against women, homicide by women is often a response to preceding years of abuse from men.” [i] It was in 1999 that the Florida Supreme Court said that a woman who shot and killed her husband in self-defense could cite the castle doctrine.

    The point that I was trying to make was that the expansion of the castle doctrine to the “Stand Your Ground” law was partly due to an expansion of the self-defense doctrine in cases of domestic violence, when retreating is not an option. I’m not certain how the state of Florida jumped from women in abusive relationships being allowed to shoot first rather than retreat first to shooting first rather than retreating in public spaces is okay, but jump they did.

    I disagree with the “Stand Your Ground” law, and I don’t think Zimmerman was defending himself. However, the language in the law is very vague and has led to a spate of homicides where self-defense was cited.

    [i] http://www.now.org/nnt/summer-2001/prisons.html

  3. Anthony K says:

    We talked about this last night, but two quick thoughts:

    The Florida “stand your ground” law was a reactive piece of legislation. It was supported by the NRA-led gun lobby lobby. But the reason there are bad laws like this is not some mysterious feature of legal language or the obsession with procedural justice — it’s politics. Lobbyists pushed this bill through a willing legislature. Compare this to what the conservative, Koch supported organization ALEC does. They have written dozens of voter ID laws, the crazy Arizona and Alabama immigration laws, and they regularly write state abortion/contraception bills, and then they help build lobbying support and fundraise to help pass them in conservative legislatures. The reason we get bad laws is that the country elects the wrong people and that these well-financed interest groups exert so much influence in politics.

    Also, I reread the Emily Bazelon thing in Slate. There is no legal reason that Zimmerman should not be arrested right now, even with that awful “stand your ground” law on the books. The prosecutor’s decision not to charge is a mistake. That defense still has to be plausibly asserted to either a judge or jury, and from the 911-call, it’s obvious that the Zimmerman guy was the one pursuing the victim. This is not just a badly written law, it’s independently shitty law enforcement.

    Lastly, the Ravi case doesn’t strike me as all that similar. This anti-intimidation law is poorly written, yes. But every state has some form of harassment, intimidation, emotional distress, or general assault bans that this behavior could have fallen under. Am I wrong that people generally know that it’s illegal to do things that would psychological torment, frighten, or terrorize other people? In any case, ignorance is not a defense, and I doubt any courts will think this law was unconstitutionally vague.

    [I suppose I don’t find Ravi as sympathetic as I know several of you do. He was offered a plea with no jail time and a promise not to be deported — which he rejected. Beyond the intimidation counts, he was convicted of several other crimes as well.]

  4. Jonathan H. says:

    Bad laws lead to bad law enforcement, just as bad education policy leads to bad teaching. Obviously the Sanford police is making a terrible judgment in error, but it’s one that would never have been made had this law not been on the books.

    My point with the procedural element is that when bad laws are passed, we have to stand by them until they’re changed, regardless of notions of justice.

    Regarding psychological torment, at what point or what age or under what circumstances does it become illegal? Schools are rife with bullying. Should bullies be sent to juvenile detention centers?

    And I’m not very sympathetic to Dharun Ravi, but I hardly think that his crime warrants up to a 10-year punishment. This is another example of how flawed our criminal justice system is.

    • Anthony K says:

      At least historically, juries have had the discretion not to enforce bad laws, although lawyers can get themselves into trouble if they ever mention this in a jury’s presence: http://en.wikipedia.org/wiki/Jury_nullification Besides voting, arguably nullification was meant to serve as one of the primary checks that the people had against tyrannous legislators.

      I don’t really follow any of the debates about school bullying and how discipline is divided up between schools and the legal system, but there’s definitely a lot of people working on legislation, etc in that area. http://en.wikipedia.org/wiki/Anti-bullying_legislation

    • Mike says:

      I’m with Anthony K on this one. Beyond finding Ravi not sympathetic, I think he deserves some pretty severe punishment. Not ten years in prison, but that’s not what he will receive. Judges are bound by some strict guidelines in sentencing, and the “maximum” here isn’t applicable to Ravi, who is a first time offender. And frankly, he wasn’t that young. He was a well-educated college student who by most accounts was a smart guy. There’s a big difference between middle schoolers being mean to each other and adults spying on each other because of their sexual orientation.

      Also, “cyber-bullying” isn’t really the appropriate term here. He happened to use a computer to record and transmit his videos, but the actuality of what occurred isn’t fundamentally different than if he had used a video camera and peeked in through his dorm room window to record his roommate’s actions. I would hardly call that cyber-bullying.

      And I’m not sure that the Sanford police’s error in judgement would have not occured if it were not for the “stand your ground” law. Zimmerman would have had a right to defend himself if he thought that Martin was putting his life in danger. He’s said that Martin jumped him and reached for his gun. He’s full of shit, and his own 911 calls contradict him, but had that actually happened, he would have been justified in shooting Martin in states with much narrower self-defense laws. There is really a failure of effort on the part of the Sanford police department and the local prosecutor.

      • Jonathan H. says:

        With regards to his age, he was an 18-year old freshman when this happened. I have students who are 18 years old. Sometimes they’re mature. Oftentimes they’re not.

        Additionally, being well-educated and smart has nothing to do with one’s values and empathy (hello Wall Street!).

  5. Mike says:

    18 is young, but not that young. Eighteen-year-olds are entrusted with a lot in general society. I just don’t buy that spying on a roommate (twice!) was simply an act of immaturity. It required too much forethought and too many deliberate actions to be an immature, spur-of-the-moment decision. Ravi was acting like an adult, just not a very respectful one.

    As for my point about Ravi being smart and well-educated, I wasn’t implying that that meant he should have had better values. I was saying that he should have been better able to understand the various consequences–to himself and to Clementi–of spying on Clementi.

    • Jonathan H. says:

      There are plenty of 18-year-olds “entrusted with a lot in general society” who probably don’t deserve the trust and are quite immature. See: soldiers who do dumb shit.

      And there are different modes of intelligences. We’re talking about somebody who didn’t take a pretty lenient plea bargain. Ravi doesn’t seem very aware of the consequences of his decisions, or he gets some terrible advice all around.

  6. Diana says:

    I wouldn’t say I’m sympathetic to Ravi, as I think he was old enough to know that what he was doing was deplorable. I also agree with Anthony K that rejecting the plea bargain makes Ravi an even less sympathetic character. But I’m not convinced that this was a hate crime. I really don’t see any intent to intimidate. Ravi definitely violated Clementi’s privacy, but I don’t see any indication that it was to intimidate him.

    I also think Ravi would have acted much differently if Clementi’s partner were another student from Rutgers who was their age, instead of an older man whom Clementi met online. It’s clear from Ravi’s emails that he was homophobic (also on the record that Clementi wrote that Ravi’s parents were “sooo indian / first gen americanish…his rents defs owna dunkin [donuts]”), but I don’t know that the reason that Ravi tried to videotape them was because they were gay.

    This case has become a symbol for the anti-bullying movement, and if Ravi weren’t convicted, there would have been a national uproar. I’m sure the jury knew that. But whatever your thoughts are on the case, I think we can agree that Ravi shouldn’t be deported due to this.

    • Anthony K says:

      I don’t really want to speculate what Ravi would or wouldn’t have done if the age/sex of his partner were different. Generally, I just have a hard time seeing why Ravi should arouse more concern that our system is imposing too many penalties, and not, say, the thousands of people who go to prison annually for things like drug possession.

      I agree that he shouldn’t be deported. Deportation is incredibly harsh, but not any more for Ravi than for anyone else who gets picked up for a minor felony. So much about US deportations practices needs to change. And automatic deportations for non-violent offenders are a travesty, particularly given how few rights are afforded to the people held in (indefinite) immigration detention. Most of them never get a lawyer, and there’s no guarantee of due process.

      And while several years of prison and deportation are severe, Ravi still doesn’t strike me as a very sympathetic candidate for either cause. And hardly anyone talking about him even bothers to make those critiques. The defenses I’ve seen tend to be primarily cultural, that this is just an irresponsible but average fratty kid.

      • Diana says:

        You’re right, there are vast systemic problems in our criminal justice system that go way beyond this case, and it’s easy and shortsighted to get wrapped up in the details of the case without acknowledging that.

    • Mike says:

      Do you think Ravi would have been more likely or less likely to videotape Clementi if Clementi were hooking up with an older woman he met on the internet?

      I think Ravi would have been less likely, which makes me think that the videotaping was done as a result of Clementi’s homosexuality.

      As for the intimiadation aspect–that becomes a definitional question, like Johnathan said in his original post. My pocket copy of Black’s Law Dictionary says:

      intimidation, n. Unlawful coercion, extortion.

      Again, that’s the pocket copy, so a more extensive definition may exist. But reading intimidation as Black does, I think you’re right, Diana–Ravi’s actions don’t meet that standard.

      However, a more general definition of intimidation, which I took from dictionary.com (I don’t have a hard copy dictionary in my office) is:

      intimidate, v. to make timid; fill with fear

      I think Ravi’s actual goal was to humiliate or embarrass Clementi. With a broader reading of intimidation, which may or may not what is intended by the statute, I think humiliation and embarrassment can be a form of intimidation, in which case Ravi was properly found guilty.

      On a side note, why can’t anyone use proper English in his or her text messages?

  7. Jonathan H. says:

    The New York Times had an opinion piece earlier today that talked about the Tyler Clementi and Trayvon Martin cases. Interesting read.


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