With lawyers for Tyler Clementi’s accused bullies Dharun Ravi and Molly Wei insisting their clients saw nothing more than Tyler kissing another man, and did not actually share that video with anyone else, could they actually manage to get off easy?
Prosecutors have only New Jersey’s 2003 state privacy law to rest their charges on. And because the burden of proof is on them, they’ll have to make clear beyond a reasonable doubt Ravi and Wei transmitted the live iChat video feed to others — something that might be impossible to do, notes the AP.
“To prove this case, you’d probably have to have the recording; you’d have to see what’s on it,” Justin Loughry, a Camden lawyer familiar with the privacy law and unconnected to the Rutgers case, said about the difficulty prosecutors could face in arguing for the harshest penalties. “Would it be enough to peek in on someone French kissing? Probably not.”
[...] “When the forensic evidence from all the seized computers is revealed, the truth will come out,” Steve Altman, Ravi’s attorney, told the Newark Star-Ledger for Sunday’s editions. “Nothing was transmitted beyond one computer, and what was seen was only viewed for a matter of seconds.”
Rubin Sinins, a lawyer for Wei, said he was “unaware of sexual contact” in the webcam video his client saw. “The statute defining sexual contact refers to nudity and private parts, and, to my knowledge, nothing like that was seen,” he said. “I’m also unaware of any evidence that any video was recorded, reproduced or disseminated in any way.”
Where prosecutors face the toughest challenge is elevating the alleged crime from the fourth- to third-degree.
The less serious fourth-degree crime could be committed if someone who is unauthorized to do so merely observes a sexual act – or in a situation where “reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact,” Loughry said. To prove the third-degree crime, though, would be harder. To be convicted someone would have to see nudity or sexual contact – and would have to record it. If the defense lawyers are correct, Loughry said, that could be hard for prosecutors to prove.
And just because Ravi tweeted out to his followers an invitation to tune in — “Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes, it’s happening again” — doesn’t equate a crime. (It does, however, show intent, though without previous rulings to establish precedent with the privacy law, it could very well be up to a judge to make the first interpretation.)
For now, we’ll have to wait and see what computer forensics turn up, and whether prosecutors have evidence Ravi’s webcam feed captured anything but kissing, and whether it reached anybody else.