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Saturday, October 2, 2010

Approve Of Me, Or Go To Jail

The New York Times today cites several commentators calling for the prosecution of the two Rutgers University students on serious criminal charges including manslaughter.

Lawyers are taught that criminal sanctions are appropriate in light of the actor's criminal intent.  The calls for prosecution and the inferences that the students caused this young man Tyler Clementi's suicide are premised on the incredible notion that causing humiliation may be a criminal act.

Here are some hypotheticals:  If I humiliate someone in a deposition by exposing their lies or fraud, and the witness commits suicide thereafter to escape his shame, must I go to jail?  If a girl commits suicide because she cannot handle the rejection after a boy breaks up with her, does the boy deserve to go to jail?  After all, in each case there is someone causing a humiliation to another and presumably sparking that person's suicide. 

There are other commentators alleging that these events show anti-gay bigotry.  It is not even clear -- and frankly, it is irrelevant -- that this young man was gay; all we know is that (as it has been reported) there was one alleged same-sex encounter, one which may not even have been consensual.  (Related questions: Where's the "other man" in this?  Can he shed light on the issues of consent, either to the encounter or to the consent of being viewed on a webcam?) 

It is also debatable whether the students' actions, or the young man's discomfort, would have been any less had his encounter been with a woman.  To conclude that anti-gay bigotry was involved here requires finding that the young man would have felt no shame if he had been viewed with a woman. 

In any event, we are moving down the slippery slope where some people will be able to compel the approval and acceptance of their actions by others under penalty of criminal prosecution -- essentially, a form of blackmail where some can demand that others approve of them, because disapproval (which under certain flexible, and unconstitutionally vague and abusive laws, can be abused to fit under the definition of "bias intimidation") causes humiliation and gives its target the right to claim bias and emotional damages resulting therefrom, in turn acting as the basis for a criminal charge. 

Can you see the potential for retaliation and revenge here?  

The less we consider actual criminal intent, and the more we let the passions of the mob dictate how we administer justice, the more we move towards a society ruled by the mob and not by laws.  While this young man's suicide is a tragedy, and the other two students' actions are unquestionably insensitive and juvenile, it is nowhere near clear that bigotry is even involved, much less that these students deserve to go to jail on any charge. 

The rush to judgment reaffirms why we need a strong legal system to protect the rights of the wrongfully accused, the truly innocent and the unpopular, whose rights and freedoms can easily be compromised and sacrificed in societies where mob rule predominates.

Eric Dixon is a New York small business lawyer who comments regularly on issues involving privacy rights, technology and government regulation.  He is available for comment or consultation at 917-696-2442 and via e-mail at

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