New Jersey officials are dealing with a tragic suicide of a freshman from Rutgers University after Tyler Clementi was allegedly filmed illegally in a sexual encounter by fellow freshman students Dharun Ravi, 18, and Molly Wei, 18. In an example of the merging of tort and criminal law, the two students have been criminally charged with invasion of privacy.
Ravi and Wei are accused of placing a camera in the Clementi’s dorm room during a sexual encounter with another male. If true, it was an incredibly vicious act followed by releasing the images on the Internet.
In addition to the criminal privacy violation, Ravi is charged with two more counts of invasion of privacy for trying to use the hidden camera to view the same student during another sexual encounter just three days later in September.
Ravi is accused of streaming the first encounter on the Web and then promising another such live feed two days later.
It was too much for this young man. In his final Facebook entry, Clementi simply wrote “Jumping off the gw bridge sorry.” He committed suicide just 72 hours after the story ran in the media.
These cases are commonly address in Torts under privacy actions, including the public disclosure of private embarrassing facts and intrusion upon seclusion. There is also intentional infliction of emotional distress. This is not a rare occurrence in tort. It is unfortunately all too common for such tapes to surface on the Internet or around universities after a couple breaks up. The result is usually a tort lawsuit as opposed to criminal charges.
However, some states have criminalized privacy violations. This case would clearly support the argument for a counterpart criminal code provisions, particularly after the victim took his life. Here is the New Jersey law:
2C:14-9. Invasion of privacy, degree of crime; defenses, privileges
1. a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.
b. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.
c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.
The law has only two affirmative defenses:
It is an affirmative defense to a crime under this section that:
(1) the actor posted or otherwise provided prior notice to the person of the actor’s intent to engage in the conduct specified in subsection a., b., or c., and
(2) the actor acted with a lawful purpose.
If convicted, Ravi and Wei face up to five years in jail. They could obviously also face tort liability. Indeed, I would recommend such a lawsuit in this type of case where the students are unlikely to spend more than a couple years. If proven, a civil judgment could force the students to continue to garnish their wages and send monthly amounts for many years to come — a constant reminder of the harm that they caused in this alleged senseless act.
Source: New York Daily News