Burden of Proof: Prosecutor Presents First Bias Crime Evidence

March 1, 2012— -- With one line plucked posthumously from an email of Tyler Clementi, the prosecution in the trial of former Rutgers student Dharun Ravi presented its first piece of evidence supporting the state's allegations of a bias crime after four days of testimony.

"I feel like my privacy has been violated and I am extremely uncomfortable sharing a room with someone who would act in this wildly inappropriate manner," Clementi wrote to a Rutgers resident assistant, Raahi Grover, after he sought to be switched to a single room.

Judge Glen Berman allowed that sentence – and only that sentence -- to be submitted as evidence from the incident report that Grover sent to higher management at the school. The judge also demanded that the state delete the words, "wildly inappropriate" since this phase dealt with Ravi's conduct rather than Clementi's own feelings. The judge did not allow the rest of the email, saying it violated hearsay rules of evidence.

The email was written by Tyler Clementi, Ravi's dorm roommate, two days after he was briefly viewed live on Ravi's webcam kissing another man.

Ravi, accused of spying on his roommate with a webcam in September 2010, has been charged with multiple counts of invasion of privacy, tampering with evidence and bias intimidation—a hate crime.

Bias Intimidation

To prove bias intimidation, which carries a potential 10-year prison sentence, the state must show that Ravi intimidated Clementi because of his sexual orientation, a charge which several of the state's own witnesses have refuted.

Yet according to former New Jersey prosecutor, this is the first tangible accomplishment in a prosecution that many view as sputtering.

"Tyler's email and Grover's testimony satisfies one of the prongs of hate crime in that Tyler Clementi reasonably believed he was being intimidated," said John Fahy, a former New Jersey prosecutor. "It gets them closer, but the fact there has been nothing said to indicate the alleged invasion was based on homosexuality still creates a problem for the prosecutor."

Ravi came to Grover's room on the night of Sept. 21, 2010 to request a room change, but upon cross-examination, Grover admitted that he had never heard Ravi say anything about Tyler's sexual orientation.

According to Grover, Ravi appeared "shaky" and Grover thought it appropriate to file an incident report immediately. When further questioned by defense lawyer Steve Altman, Grover said that it was he, not Clementi, who "escalated" the request and believed it should be implemented "ASAP." But Clementi returned to his shared dorm room that same night and rejected an offer by Grover for another place to sleep.

"Tyler is upset and uncomfortable and wants a room change ASAP and for Dharun Ravi to receive some sort of punishment," Grover wrote in an incident report after speaking to Ravi on Sept. 21, 2010. Grover also testified that he later spoke to Ravi twice about the incident, but never heard Ravi say anything that could be interpreted as gay bias.

While the state made headway toward showing Clementi felt intimidated, they have yet to show any evidence that Ravi was motivated by Clementi's homosexuality.

"The biggest problem the state has is that nearly all of its own witnesses have testified the defendant is not homophobic and did not do this because Tyler was a homosexual," said Fahy.

There are three criteria in the bias intimidation law. The first two call for evidence that the defendant purposely or knowingly attempted to intimidate based on biased motivations. The third criteria calls for evidence that shows the victim had good reason to believe he was being intimidated. A jury must unanimously agree on at least one of the criteria to convict.

To prove invasion of privacy and attempted invasion of privacy, the state must demonstrate that the defendant deliberately set out to expose sexual conduct without permission.