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One of the core assumptions of LGBT activism, anti-racism work, and other civil-rights activism is that all of us, no matter how enlightened we are, have prejudice within us. You don't "get over" your racism or homophobia; you learn to recognize it.
Yet the highest-profile gay-bashing trial of the decade will turn on whether Dharun Ravi, a Rutgers University sophomore, acted out of anti-gay bias against his roommate, Tyler Clementi, when he recorded Clementi having sex with another man on his webcam and tweeted about it. The facts are not in dispute; only the motivations. In other words, not only is the entire case taking place in Dharun Ravi's head, but Ravi is on trial for what all of us feel from time to time: prejudice against those who are different from us.
Why? Because while Ravi is on trial for invasion of privacy, the more serious offense with which he is charged is "bias intimidation," a hate crime. If all Ravi did was film Clementi in bed with another man, it's a minor offense. If he did so in order to harass Clementi for being gay, he could get 10 years in prison.
As the trial has unfolded, there appears to be general agreement that Ravi is a bit of a jerk. He and his friends made fun of Clementi's economic status, his nerdy demeanor, even his choice of email provider. Ravi used the words "fag" and "gay" in a derogatory way. And yet, as I've read the instant-message transcripts that form much of the body of evidence, it's been abundantly clear that Ravi's homophobia is of the casual, locker-room variety. Yes, it's there, but it's also everywhere.
Clementi, meanwhile, emerges as a delicate young man who was uncomfortable in his own skin—not only because he was gay, but also because he was slight, socially awkward, and unsure of himself.
Of course, this trial is taking place only because shortly after Ravi recorded him, Clementi killed himself by jumping off the George Washington Bridge. That's why the case has attracted so much attention: Clementi was one in a series of gay-teen suicides brought on by bullying and intimidation. Now both Clementi and Ravi are symbols.
And yet, is Ravi really responsible for Clementi's suicide? Legally, the only relevance of the suicide is whether it shows Clementi felt harassed for being gay. In reality, the suicide haunts everything; otherwise this would be a matter for the Rutgers resident advisers.
The problem is that justice is individual, whereas symbols are collective. Of course, judges "send a message" to would-be criminals all the time by disproportionately punishing the ones who get caught. But there's a difference between sending a message and scapegoating. Whatever was going through Ravi's head is no different from what millions of other 18-year-olds think, and feel, all the time—including, every jock I went to high school with. Those attitudes are indeed reprehensible. But Ravi is the one whose life now hangs in the balance, a scapegoat for all of us.
At the same time, an acquittal would send the message that it's OK to bully gay kids, embarrass them, and drive them to despair or worse. The details will be lost, and the effects will be disastrous. There's no good result here. Individually, it's a disaster if Ravi gets sent to jail. But symbolically it's a disaster if he's let off.
The only way out would be a verdict that no one will like: guilty, but with no jail time for "bias intimidation." This would send the right message while not ruining the life of an average guy who picked on a delicate kid. It would protect hate-crime laws from being undermined by a bad case. And it would acknowledge who's really on trial in this case: all of us.