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Guilty Verdict in Rutgers Spying Case – What would Texas do? [Audio]

Minutes ago, a New Jersey jury convicted Dharun Ravi in the Rutgers webcam spying case.  You can read more details here or listen to my Friday radio interview with News92FM here.   

In sum, Ravi took a secret webcam video of his roommate engaged in a homosexual encounter.   Ravi tweeted the incident and scheduled another viewing when he suspected there would be another encounter in his room.   Tragically, his roommate committed suicide soon thereafter.  It sparked a national debate about online bullying.

Ravi was charged with invasion of privacy, tampering with evidence, hindering apprehension and bias intimitation which is more commonly known as hate crimes.  Ravi was found guilty of most counts including bias intimitation which means his sentence could be doubled. 

This is one of the first trials on New Jersey’s new criminal invasion of privacy statute which makes it worthy of attention.  It’s one of the first states that criminalizes the making of “sex tapes” without someone’s permission.  Title 2C of The New Jersey Code of Criminal Justice – 2C:14-9, states a person may commit a crime for invasion of privacy when there is:

(1) unprivileged exposure of intimate parts; or
(2) photographs, films, videotapes, records, or other reproduction on the image of another person’s exposed intimate parts or when engaged in an act of sexual penetration or sexual contact, without a person’s consent and under circumstances in which a reasonable person would not expect to be observed.

What would happen in Texas?

So what if this happened in Texas?   Texas has a claim for “Improper Photography or Visual Record” which makes it iillegal to ”photograph[] or by videotape or other electronic means record[], broadcast[], or transmit[] a visual image of another at a location that is not a bathroom or private dressing room without the other person’s consent; and with intent to arouse or gratify the sexual desire of any person.”   Texas Penal Code section 21.15.  

The Texas law requires an intent to arouse or gratify the sexual desire of another person which could have made prosecution of these facts in Texas difficult.   

Prosecutors may have tried to creatively use the ”Online Impersonation” provision found in Section 33.07  of the Texas Penal Code which became law in 2009.  Despite its name, it could be applied because of some very broad language.  It makes it illegal to ”without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to . . . post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.” 

The law was meant to crack down on impersonators, but a plain reading of the statute could be used in this case because without the victim’s permission, the defendant posted his identifying information with the intent to “harm” him. 

Texas also has its own version of a hate crime law.   Article 42.014 of the Texas Code of Criminal Procedure allows for enhanced sentences if the jury determines the defendant “intentionally selected the person against whom the offense was committed  . . . because of the defendant’s bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.” 

If the prosecutor could be creative to find a underlying crime, then the defendant in Texas could be subject to an enhanced sentence.   Of course, the family of the victim could have certainly brought a civil lawsuit to recover money, even if there are no applicable criminal statutes. 

 The defendant was also found guilty of tampering with the evidence for erasing, or trying to erase, text message and tweets.