Rutgers Harassment Case Could Be First Test for NJ Privacy Law

Thursday, Nov 4, 2010  |  Updated 9:00 PM EDT
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Rutgers Harassment Case Could Be First Test for NJ Privacy Law

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Tyler Clementi

The case of a Rutgers University student who committed suicide after a roommate allegedly used a web cam to spy on his tryst with another man could pose the first legal test of a state privacy law passed in 2003.

  Lawyers for the roommate and another student, accused of watching 18-year-old Tyler Clementi "making out with a dude" in his dorm room on the Piscataway campus, insist their clients were the only two people who saw a tame encounter and did not record it.
 
Prosecutors said, though, that they tried to transmit a "sexual encounter" on the Internet but haven't said how widely available they believe the video was.
 
Therein lie the questions: What was the potential audience? What constitutes privacy? What did Clementi know, and why did he believe death was the best option? For the young suspects, the answers could mean the difference between years in prison, 18 months or no time at all.
 
"To prove this case, you'd probably have to have the recording; you'd have to see what's on it," Justin Loughry, a Camden lawyer familiar with the privacy law and unconnected to the Rutgers case, said about the difficulty prosecutors could face in arguing for the harshest penalties. "Would it be enough to peek in on someone French kissing? Probably not."
 
The case became a national symbol soon after the news broke that Clementi, a freshman just a few weeks into classes at Rutgers, committed suicide by jumping into the Hudson River from the George Washington Bridge.
 
In the days before his death, authorities said, Dharun Ravi and another student, Molly Wei, watched his encounter with an unidentified man in the room Clementi shared with Ravi.
 
The story came on the heels of a spate of gay teenagers nationwide killing themselves after being bullied — and it quickly took on that mantle.
 
Clementi's death galvanized efforts to fight suicide and bullying of gay teens. It helped inspire "Wear Purple Day" last month, in which advocates encouraged people to wear the color to protest bullying. Talk-show host Ellen DeGeneres, Secretary of State Hillary Rodham Clinton and President Barack Obama joined luminaries in recording videos decrying bullying and suicide.
 
Facebook groups popped up calling for expulsion or long prison sentences for Ravi and Wei. Some groups have suggested hate-crime charges, and Middlesex County prosecutors say they're evaluating whether the state's hate-crime law might apply.
 
To convict someone of a hate crime, a jury must find that someone committed a crime out of a belief that the victim was a member of a protected group, such as a racial or sexual minority. Friends of the suspects have said they held no animosity toward gays.
 
Their lawyers announced last week that they were withdrawing from Rutgers out of fear for their safety, and followed a few days later with comments that appear to be aimed at getting their clients the lightest penalty possible — but not denying their involvement.

"When the forensic evidence from all the seized computers is revealed, the truth will come out," Steve Altman, Ravi's attorney, told the Newark Star-Ledger for Sunday's editions. "Nothing was transmitted beyond one computer, and what was seen was only viewed for a matter of seconds."
 
Rubin Sinins, a lawyer for Wei, said he was "unaware of sexual contact" in the web cam video his client saw.
 
"The statute defining sexual contact refers to nudity and private parts, and, to my knowledge, nothing like that was seen," he said. "I'm also unaware of any evidence that any video was recorded, reproduced or disseminated in any way."
 
Altman has not agreed to an interview with The Associated Press, and Sinins would say only that his client is innocent of any charges. But experts said the defense they have outlined might not be enough to clear the 18-year-olds.
 
On Sept. 19, Ravi tweeted: "Roommate asked for room until midnight. I went into molly's room and turned on my web cam. I saw him making out with a dude. Yay." Two days later, he said this: "Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes, it's happening again."
 
Authorities say Ravi failed in an attempt that time to spy on his roommate.
 
In a gay-themed chatroom, a poster who appears to have been Clementi said he unplugged Ravi's computer and searched for hidden cameras before a liaison that night.
 
The applicable state invasion-of-privacy law, adopted in 2003 as a sex offense, appears to be seldom used. There have been no legal cases in which judges have further interpreted it.
 
The law differentiates between a third-degree crime, which could carry a five-year prison term, and a fourth-degree crime, punishable by no more than 18 months in prison for first-time offenders. Prosecutors have not specified which degree Ravi and Wei are charged with.
 
The less serious fourth-degree crime could be committed if someone who is unauthorized to do so merely observes a sexual act — or in a situation where "reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact," Loughry said.
 
To prove the third-degree crime, though, would be harder. To be convicted someone would have to see nudity or sexual contact — and would have to record it. If the defense lawyers are correct, Loughry said, that could be hard for prosecutors to prove.
 
No lawsuits have been filed, though Clementi's parents do have a lawyer. John Bazzurro, a lawyer in West Long Branch, said he believes that Clementi's family could file a claim for privacy invasion whether or not Wei and Ravi witnessed any sexual contact or disseminated the video.
 
Sean Morrissey, managing director of Katana Forensics, a computer forensics software firm based in Easton, Md., said that a video session on Apple's iChat can be between only two parties, and that the video would not be saved.
 
And while prosecutors have not said how far the video went, it's possible — but very uncommon — to use "third-party software" from another company to disseminate a live video more widely, Morrissey said.
 
Bill Dobbs, a longtime New York City gay rights activist, said he worries about "armchair prosecution" as people call for more serious charges against Ravi and Wei without knowing all the facts. But there's value in the social discussion that has come out of the case, he said.
 
"The bigger conversation's very important because that's part of efforts to get at the truth," he said. "What actually led to him committing suicide?"

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