Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

RUTGERS STUDENT IS SENTENCED TO JAIL FOR WEBCAM BIAS CRIME

We discussed this case during its trial. You may recall the criminal trial of Mr. Dharun Ravi, 2 years of age and hereinafter, the “Defendant”.

Initially, he was accused of bullying because he used a webcam to spy on his Rutgers roommate kissing another man. Shortly after learning about the recording, the roommate, 18-year-old Tyler Clementi committed suicide.

The tragedy was met by calls for the Defendant’s hide as his “cyber-bullying” was considered responsible for the death. There were even pronouncements of ‘murder” being bandied about.

Throughout my years as a Boston Criminal Lawyer, I have warned my clients that it is not really the conclusions made at the inception of a criminal investigation or arrest that will determine the result; it is generally what happens by the time the matter gets to trial. Indeed, things changed a bit by the time the Rutgers case went to trial.

At trial, the prosecution made it clear that it was not holding the Defendant responsible for his roommate’s death. Further, the charges did not include homicide, cyber-bullying or even bullying.

Instead, now it was a hate crime. A hate crime because the Defendant invaded his roommate’s privacy in a way which intimidated him, all because of his bias against gay people. The big issue in the case? Whether or not the Defendant was indeed homophobic.

In March, the jury found the Defendant guilty. Now, the New Jersey judge has sentenced him.

The court sentenced the Defendant to 30 days in jail He also placed the Defendant on three years of probation. The judge declined imposing a stiffer prison term, which could have included up to 10 years in a stricter prison. He also did not recommend that the Defendant, a citizen of India, be deported. The Defendant was, however, also ordered to get counseling and to pay $10,000 toward a program to help victims of bias crimes.

Attorney Sam’s Take On Hate Crimes

The prosecutions of crimes that are regarded “hate crimes” underscore the fact that the j rules by which we live can and do change, depending on the circumstance.

For example, it may surprise you to know that it is not per se illegal to be homophobic. Likewise, nobody can throw you behind bars simply because you do not like Jews, African Americans or any other group.

However, what you do as a result of such bigotry can be the basis of civil litigation or a criminal prosecution.

Of course, this makes total sense when it comes to the enforcement of equal rights. For example, let’s assume that the Law Offices of Samuel Goldberg was looking for a new employee to replace my current associate, the great Ian Keefe. Sloppy Sally shows up to the interview wearing her coffee-stained suit jacket and matching spaghetti-sauce-stained skirt. During the interview, it also becomes apparent that her relationship with the concept of soap-and-water is tenuous at best. Finally, she appears to have the organizational skills of my daughter…when she was six.

I can clearly decline to hire Sloppy Sally for the position.

On the other hand, let’s say Sally is not sloppy at all. In fact, she makes a good presentation and is quite qualified. However, Sally does happen to be a female and, being a chauvinistic beast, I believe that all women are inferior. Therefore, I decline to hire her because she is not male.

This is something that I am not allowed to do. No, nobody is likely to throw me in jail, but I am likely to be successfully sued.

As a society, we do not allow gender bias or several other types of bias when it comes to things like hiring.

However, we do not allow folks to commit crimes for any reason. If, outraged that a female would dare show up to interview with me, I stood up and punched Sally in the mouth, this would be the crime of Assault and Battery. It actually would not matter if Sally was female, male, gay, straight, white, black or any other derivation of humanity. It was a crime for me to strike her regardless of the reason.

The same is true with any other crime. However, for reasons that I believe are media-related, some crimes are labeled “hate crimes” or “bias crimes”. This is supposed to make these crimes worse somehow.

I must wonder, however, if the Defendant had performed the exact same acts with the webcam simply because he found the sight of the two men kissing sexually stimulating, would the crime have been any less terrible? Do you think that the roommate would have been any less likely to kill himself?

What do you think mattered more to the roommate? How his roommate felt about him (and why) or how others viewing the video or hearing about the fact that he was gay would react?

Which do you think intimidated him more?

“Well, Sam, we surely cannot prosecute the campus because some folks might be homophobic…even if that is, indeed, where the problem lies”.

No, we cannot.

Maybe, however, we could pay attention to that problem rather than simply pursuing the “feel good” solution of pinning it all on the Defendant.

Further, the performance of stupid deeds like video-taping a roommate is not something that is particularly new…although the internet does provide a ready audience for such things. At the same time, we seen media-spotlighted prosecutions for other behaviors which, while certainly considered negative by many of us, have seldom been prosecuted in the past.

The issues of bullying and hazing come to mind.

Somehow, our kids are supposed to know that now these things are being taken seriously.

How do they learn that times have changed?

They learn it as they read it from the criminal complaint their attorney is handed at their arraignment.

That’s right, as said charges are added to their criminal records which will stay with them for the next several years, inhibiting their progress through education or employment at every turn.

Is this really the solution?

I clearly do not think so, but it is the criminal justice path of least resistance.

What do I mean by that?

Stay tuned for my next blog.

To read the original new story upon which today’s blog is based, please go to http://news.yahoo.com/blogs/lookout/former-rutgers-student-gets-30-day-sentence-hate-163712291.html

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