A Harmless Prank

(Substantially revised 10/4/2010).

As is often the case, the Tyler Clementi story has elicited a politicized narrative from the media; I just turned on the BBC and heard an extended discussion of cyberbullying and homophobia. However worthy such a discussion may be, it runs the risk of polarizing the discussion by politicizing it, and thus causing us to lose sight of some central facts.

In every state in this country, and I’d be willing to hazard that in every country in the world, there is a part of the criminal code devoted to sex offenses. If a man creeps onto a woman’s property, hides behind the bushes and spies on her through the window while she takes a shower, this is a crime, whether or not he leaves a sprinkling of his DNA on the bougainvillea. Add a little surreptitious photography or videography and this sort of activity is, in most states, a felony. In many states, distribution of the images increases the seriousness of the offense a degree. In some states the convicted can be required to register as a sex offender. In New Jersey, this can get you as much as five years in prison and a $30,000 fine. The conduct is not considered a harmless prank, and its treatment under the law is not a slap on the wrist.

In the wake of Tyler Clementi’s death, there was widespread frustration expressed at the thought that the people who recorded and transmitted his image, which we all presume to have been relevant to his suicide, would not be punished in a manner severe enough for the harm they have caused. The contrary response was to emphasize that Clementi killed himself and that there was clearly no intent to kill in the perpetrators, who were guilty of no more than a harmless prank.

However, in most states, you can be criminally liable for causing a death by negligence, most commonly through how you operate a motor vehicle, but not only in that way. People who have committed negligent homicide are not regarded as having committed a harmless prank either. In Tennessee, for example, you can as much as six years in prison.

If we allowed unintentionally inducing a suicide to constitute a form of homicide, it is unlikely that we would make the penalty any more severe than we would for criminally negligent homicide; in both types of cases there is conduct we don’t like leading to death, but no intention to cause death.

In short, what New Jersey lacks, namely a means of holding Clementi’s “Peeping Toms” responsible for his death, would likely lead to a punishment comparable for the punishment they would receive under New Jersey’s existing Peeping Tom statute. Though it’s early days, there is no reason to think that they will be underpunished.

Second point: though “bullying” is not a precisely defined crime, the folk moral notion seems to be to induce fear or shame in the victim. It is, in my view, rather difficult to bully someone while keeping it a secret from them that one has done so. Though it’s not unlikely that the perpetrators intended to make Clementi aware of what they have done eventually, in order to cause him fear or shame, it’s not obvious to me that this is the case. Though their enjoyment may not have been itself sexual, it’s not clear that it hinged crucially on Clementi ever knowing what they had done. This much, at the very least, remains to be seen. When we talk of “cyberbullying” I think we typically think of using a computer to direct messages to someone, not merely about them.

Third point: from everything we’ve heard thus far, one of the perpetrators’ motives could be either a desire to commit a malicious (i. e. not harmless) prank, or to ventilate frustration over the use of a shared dorm room for sex. Neither is necessarily connected to homophobia, any more than the desire of one person of one race to rob someone of another race is necessarily racist.

I think our sense that this was somehow a crime of homophobia is linked to the thought that this was, in effect, an involuntary outing, and that that dimension of it was the one connected to the suicide. Though it is early days, there is some indication that Clementi was only mildly annoyed at the thought that he had been spied on by the roommate; subsequently something dramatically changed, and this may well have been Clementi’s discovery that the images were now available to other people he knew, perhaps family members. But how we judge the effects and their social context is different from the intentions of the perpetrator. We simply don’t know yet whether this was a case of an annoyed roommate who would’ve reacted in exactly the same way if the person Clementi brought into their room was a woman. We do the cause of justice no service by jumping to conclusions.

Several years ago, Matthew Shepard was brutally murdered by men who were pretty clearly motivated by antigay animus. What they did was horrifying. What was done to Tyler Clementi was vicious, and I hope and expect those responsible will be dealt with as harshly as the law allows, but it was not of the same order. We do the cause of amity and equality no service by blurring distinctions either.

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