Despite my repeated efforts to come off as a hard-ass in the classroom, I am actually something of a pushover when it comes to undergraduates engaging in undergraduate-like behavior. People between the ages of 18 and 20 are immature; in many cases shockingly immature, and rarely ever (in my experience) mature to an extent that matches their legally-defined status as adults. Of course, most of what I deal with does not involve long term consequences. Late papers and poor class attendance will not be branded onto any students like a scarlet letter of shame (pursuant to the Supreme Court's decision in American Civil Liberties Union v. Ed with a Branding Iron). I am not a judge and I don't have to deal with the kind of immature crap that will follow these kids around life.
Would any of us like to be defined by, or spend the rest of our lives answering for, the worst decision we made when we were 18? Of course not. But some people have to do so anyway on account of the nature and severity of that "worst decision." The two people who have been arrested in the Tyler Clementi case, wherein two college freshmen secretly videotaped and then broadcast a male roommate fooling around with another male student, falls into the Mark of Shame category. At least it should. Whether it will is another question.
"Your Honor, they're just stupid kids who didn't know any better" is a remarkably successful defense, at least for upper-middle class kids whose parents can afford a fancy lawyer for Billy's First Drug Buy. In most cases these kids really don't know any better, which is to say that they are idiots who have no life experience, moral compass, or relevant parental guidance in their upbringing. To say "I had no idea this kid would jump off of a bridge, and had I known it I would never have done it" is, in every sense, a completely accurate statement. I'm sure the accused had zero intention of being responsible for a death. But they can and should be responsible for their intent to cause someone else harm. You don't post a secretly recorded video of an 18 year old guy with another guy for any non-malicious purpose. Their goal was simple and illustrates the foundation of the sociology of being an American teenager: one group or person humiliating or abusing another for their own entertainment or benefit. This happens on a smaller scale (at least in terms of outcomes) millions of times per day from grade school playgrounds to college dorms.
The only difficult question here – as their guilt with respect to New Jersey's invasion of privacy statute seems beyond dispute – is the frequently and lightly thrown-about concept of a "hate crime." If, for example, they had distributed a secret video of the victim masturbating while alone in his room it would have caused him an incredible amount of humiliation and, for an emotionally fragile 18 year old, could very easily have led to the same tragic ending to the story. Would that have been less reprehensible? Deserving of less punishment? Since motivation based on hatred or bigotry speaks to intent, the Clementi case seems to be a bad fit. The accused do not appear to have had any intent at all let alone one based on negative attitudes about gays. They are just horrible people incapable of understanding (or perhaps caring) what their actions would do to someone else. It's simply another case of popular kid mocks social outcast for the amusement of other popular kids. Film at 11.
Hate Crime would seem to be a better label for acts that would not mean the same thing if not motivated by hatred – throwing a burning piece of wood in my black neighbor's yard is illegal, but becomes a whole different issue if I shape it into a cross first. It is illegal to violate someone's privacy like Dharun Ravi and Molly Wei did to Tyler Clementi, and their punishment should be the same regardless of their intent. To say "Yes, punish them more harshly because they did this on account of his sexual orientation" is a hard step for me to take, though. Doing so may be justifiable by the circumstances, but in a strange way I think it would diminish the underlying issue that I think deserves more attention: why are we so tolerant of a social structure for people in this age group built almost entirely on varying degrees of bullying?
I understand if you feel like the take-home point from this affair is that they outed this guy to humiliate him, which says something disgusting about the extent to which homosexuality is stigmatized in America. That's legitimate. For me, however, the weight of the story would be the same if they decided to pick on the fat kid, the ugly kid, the kid with dyslexia, the foreign kid, or the kid who is simply too weak to defend himself. The point is that we raise kids to believe (or at least condone) that it's OK to interact with the world by belittling other people for one's own social benefit. And that is rarely recognized as inexcusable and unacceptable even when the consequences are shocking. I think that this sort of thing happens on a daily basis and it's unfortunate that the media can only take an interest when there's a sufficiently compelling "angle" (Ooh, gay sex drama at Rutgers!) It's too bad that we don't talk about the hundreds of other annual instances of kids killing themselves because we condone "kids being kids", which in the modern context means that they treat ruining one another like a game.