By Mike Dorf
An important sticking point in the Dharun Ravi prosecution was the question of whether Ravi's actions invading Tyler Clementi's privacy were motivated by anti-gay bias. I didn't closely follow the trial evidence but I did read the New Yorker story on Ravi a couple of months ago that gave some reason to doubt that Ravi is homophobic. A friend of Ravi's said that Ravi is a "dick" who is "so much of a jerk that it may seem like he’s a homophobe but he’s not.” Apparently, the jury didn't buy the jerk-but-not-a-homophobe defense (although an alternate juror apparently did).
Meanwhile, the Ravi case has led to renewed interest in an issue that has generated substantial controversy from time to time: Should the law punish hate-crimes more severely than otherwise comparable crimes motivated by more mundane impulses than illicit bias, such as revenge, anger or avarice? In Wisconsin v. Mitchell the Supreme Court unanimously upheld a hate-crime statute against a free speech challenge on the ground that laws routinely differentiate motives in assessing culpability. The Court credited the State's argument that "bias motivated crimes" may be deemed worse than otherwise equivalent crimes because the former "are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest." Some hate-crime critics remain unpersuaded but as a practical matter the debate about the legitimacy of hate-crime legislation is over.
Still, even if one thinks that hate-crime prosecutions are legitimate in general, there is at least the appearance of a double-standard in the Ravi case. Some critics of the prosecution and verdict have complained that, although Ravi was not in any way charged with causing Clementi's death, the prosecution was motivated by the fact that Clementi died. Had Ravi engaged in the same behavior but Clementi had not been driven to suicide, the critics claim, Ravi probably wouldn't have been charged with any crime at all, much less had the book thrown at him. Yet the state's motivation appears to be legally irrelevant. Even if it could be shown that the government selected Ravi for prosecution because of Clementi's ensuing suicide, that would not invalidate the prosecution. And so we have an asymmetry: Ravi's homophobic motive in invading Clementi's privacy makes Ravi more guilty, but the government's motive of "avenging" Clementi's death as the reason for bringing the prosecution does not matter.
How do I know the prosecution's motive doesn't matter? Because in United States v. Armstrong, the Supreme Court said that ordinary equal protection standards apply to selective prosecution claims. Selectively prosecuting based on a suspect classification like race is presumptively impermissible, although the Court in Armstrong made clear that it will be difficult to prove such a selective prosecution claim. But in any event, where, as in the Ravi case, the alleged criterion used to trigger prosecution is not a suspect classification, mere rational basis scrutiny applies. Is there a rational basis for the government to treat otherwise similar conduct differently because a death occurred in one case but not in the other (even if the defendant is not charged with causing the death)? Sure. The sound exercise of prosecutorial discretion will commonly target more harmful conduct rather than less harmful conduct, even though the perpetrators may be morally indistinguishable.
Put differently, we might understand a selective prosecution claim by Ravi as failing for the same sort of reason that one could not bring a selective prosecution objection to being charged with manslaughter rather than mere battery because one's victim happened to die. The law constantly treats people who commit equally culpable acts unequally because one had the bad luck to cause more harm than the other. If A drives 60 mph in a 45 mph zone, A may get a speeding ticket. If B drives 60 mph in a 45 mph zone and, because he is speeding, B is unable to avoid killing a child who runs into the road, B may be charged with negligent homicide, which carries a much more substantial penalty than speeding does.
It's true that in the foregoing hypothetical, B is actually charged with causing the child's death, rather than--as supposedly happened in the Ravi case--charged with some other serious offense that he did commit but otherwise wouldn't have been charged for, because of the resulting death. But that's hardly a morally salient distinction.
In the end, then, there is no real unfairness in saying that the prosecution's motive doesn't matter but Ravi's motive does. Ravi's motive mattered because of the harms associated with hate crimes. The prosecution's supposed motive does not matter because it's legitimate for the state to treat crimes that happen to cause more harm more seriously than crimes that happen to cause less harm.