A unanimous ruling by New Jersey’s Supreme Court in State v. Pomianek, 2015 N.J. LEXIS 275, 2015 WL 1182529 (March 17, 2015), striking down part of the state’s Bias Intimidation Law, may imperil the conviction of Dharun Ravi in the suicide of Tyler Clementi , the gay Rutgers University freshman who had been Ravi’s dormitory roommate.
The court’s ruling came in the case of David Pomianek, Jr., a white man who was convicted by a superior court jury of bias-harassment of an African-American co-worker by locking him in a cage at work for a brief period of time in what Pomianek considered to be a “harmless caper,” according to the opinion by Justice Barry Albin.
Under N.J.S.A. 2C:16-1(a)(3), a person could be convicted even though he did not intend to intimidate the victim or even have knowledge that the victim might be intimated by his conduct, so long as the victim felt intimidated and believed that he was being harassed because of a forbidden ground under the statute. In this case it was race. In the Ravi case, it was sexual orientation which, together with gender identity, are also forbidden grounds for harassment under the statute.
The jury in Pomianek’s case found a lack of intent or knowledge on his part on the bias charges, but convicted based on the victim’s perceptions of being harassed because of his race, as well as some other related charges. Pomianek’s conviction under this provision was reversed by the New Jersey Appellate Division, which concluded that a conviction “based on the victim’s perception” and not on the “defendant’s biased intent” would violate the 1st Amendment. The Appellate Division then “read into” the statute an intent requirement and sent the case back to the superior court for a new trial.
The state appealed, and the Supreme Court focused on the Due Process Clause of the 14th Amendment rather than the 1st Amendment. “In focusing on the victim’s perception and not the defendant’s intent,” wrote Justice Albin, “the statute does not give a defendant sufficient guidance or notice on how to conform to the law. That is so because a defendant may be convicted of a bias crime even though a jury may conclude that the defendant had no intent to commit such a crime.” Since a defendant would not necessarily know that a particular person would feel intimidated by particular conduct, they would not be on notice that their conduct might be illegal.
Disagreeing with the Appellate Division, however, Albin found that courts cannot “rewrite” a statute to supply a missing intent requirement. “That level of judicial tinkering with legislation exceeds the bounds of our authority,” he wrote. Since the court had resolved the case on 14th Amendment grounds, it refrained from addressing the Appellate Division’s 1st Amendment holding. The court reversed Pomianek’s conviction under the bias law. Since the jury found no intent, there was no basis to uphold it, or to require a new trial.
According to the court’s opinion, the provision basing criminal liability entirely on the victim’s perceptions made the New Jersey statute “unique,” as no other hate crime law in the country imposes liability in such circumstances. The ruling leaves intact the other two operative provisions of the law, criminalizing intentional or knowing bias intimidation. The requirement to show the requisite intent has proven a major stumbling block in hate crime prosecutions around the country, and has deterred prosecutors in some cases from bringing hate crime charges in cases that appear, at least circumstantially, to involve defendant bias, where there was not strong evidence of discriminatory intent.
The Dharum Ravi trial became a rallying point for people concerned about bullying of gay students. Ravi was charged with using a webcam to spy on Clementi having sex with another man in their dorm room, and then sharing the images with others online, leading Clementi, a sensitive young man whose coming out to his parents had not been a total success, to become despondent and ultimately suicidal. Clementi jumped off the George Washington Bridge just days after learning that the webcam images were spreading on Twitter. Rutgers University undertook major reforms in response to the incident, and Clementi’s family established a foundation to promote understanding for young gays.
Charges were brought against Ravi under several provisions, including the one struck down in the Pomianek case, and the judge allowed evidence about Clementi’s reactions to learning about the webcam spying to be presented to the jury. The New York Times reported on March 18 that jurors in the Ravi case “said after the conviction that some of the most convincing evidence of Mr. Ravi’s guilt came from Mr. Clementi’s own complaints and online posts after he learned that he had been spied on.”
The judge was sufficiently concerned about flaws in this provision that he did not enhance Ravi’s sentence to reflect conviction on this ground, according to the account in the Times. Ravi received a short prison sentence – 30 days – and was released after only 20 days for good behavior in prison. The state appealed the judge’s failure to enhance the penalty due to the bias harassment conviction. Ravi’s lawyer raised constitutional concerns in responding to the state’s appeal. The case is still pending in the New Jersey court system.
The Supreme Court’s March 17 ruling makes it likely that some or all of the Ravi conviction will also be reversed.