NBC News and news services
updated 10/1/2010 8:09:30 AM ET 2010-10-01T12:09:30

Some gay rights groups are urging that New Jersey's hate crime law be used in the case of the Rutgers student who committed suicide after an intimate encounter with another student was shown on the Internet.

The state's hate crime law is among the strictest in the nation, and it works as most of them do. It's not an offense charged on its own. Instead, it's invoked at sentencing to seek a harsher penalty. The criminal charges filed so far in the case — invasion of privacy — would qualify for a hate crime enhancement, say legal experts in the state.

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According to the Middlesex County prosecutor, New Jersey's invasion of privacy statutes make it a crime "to collect or view images depicting nudity or sexual contact involving another individual without that person's consent." It's a separate crime to transmit or distribute those images. The penalty can include a prison term of up to five years.

If the hate crime enhancement were applied, it would raise the maximum penalty to 10 years.

Tyler Clementi, 18, jumped off New York City's George Washington Bridge into the Hudson River last week. His body was identified on Thursday after being found in the river a day before.

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Clementi's roommate, Dharun Ravi, and fellow Rutgers freshman Molly Wei, both 18, have been charged with invading Clementi's privacy. Prosecutors say that they used a webcam to surreptitiously transmit a live image of Clementi having sex Sept. 19 and that Ravi tried to webcast a second encounter on Sept. 21, the day before Clementi's suicide.

As for possible federal charges, a Justice Department official says that's not likely at this point. The federal hate crime law would not apply, the official says, because it requires proof of an intent to cause violence to the victim.

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Steven Goldstein, chairman of New Jersey-based Garden State Equality, said in a statement that his group considers Clementi's death a hate crime.

"We are heartbroken over the tragic loss of a young man who, by all accounts, was brilliant, talented and kind," Goldstein said. "And we are sickened that anyone in our society, such as the students allegedly responsible for making the surreptitious video, might consider destroying others' lives as a sport."

Former assistant Essex County prosecutor Luanne Peterpaul, who is vice chairwoman of Garden State Equality, said in order to apply the hate crime law prosecutors would need to establish that the defendants were motivated to act because they perceived Clementi as gay. But that can be hard to prove, she said.

Story: Outrage on campus over student's suicide after sex is broadcast online

Gay rights groups say Clementi's death is the latest example of a long-standing problem: young people who kill themselves because they're bullied about being gay — regardless of whether they are.

In response to Clementi's death and others, the group Parents, Families & Friends of Lesbians and Gays said it would issue a "call to action" on the topic.

Last week, Dan Savage, a columnist at the Seattle weekly newspaper The Stranger, launched the It Gets Better Project, a YouTube channel where gay, lesbian and bisexual adults share the turmoil they experienced when they were younger — and show how their lives have gotten better.

NBC News Justice Correspondent Pete Williams and The Associated Press contributed to this report.

Video: Student’s suicide probed as hate crime

  1. Closed captioning of: Student’s suicide probed as hate crime

    >>> let's begin this half hour with prosecutors now looking into filing more serious charges against the two rutgers university students who are accused of streaming video of another student's sexual encounter online.

    >> reporter: good morning, matt. there's a growing chorus that's saying that the incident that was involved wasn't just an act of video voyeurism or cyber bullying , but of cyber gay bashing , but one of the suspects reportedly says not so. it has now been confirmed that the body pulled from the hudson river was that of tyler clementi , who wrote on his facebook page, jumping off the gw bridge , sorry. this encounter was streamed live over the internet. two classmates have been charged with privacy law violations, but the count prosecutor says they'll be making every effort to assess whether bias played a role in the incident.

    >> privacy violations are --

    >> meanwhile the respected rutgers college newspaper reports that unnamed students say on the night of the incident, a strange older male arrived at the room robby shared with clementi and that robby had no intention of witnessing any kind of intimate encounter. he just wanted to know what was going on in his room and quickly looked at the webcam that he had left on. but one of the suspects told nbds after listening to the reading of the account, that is basically the story robby is telling. but there's been no denial that robby tweeted that clementi was making out with a dude, yay. however this happened, the death of this gifted student has left fellow students to wonder how tech savvy students could still be confused about what technology can do and what it should not do.

    >> especially with the generation that has grown one the internet, they might not bay ware of the repercussions of their actions.

    >> reporter: the lawyers for the two suspects are not comments. but someone who appears to be clementi wrote several posts on a gay website who was wrestling with what to do about a roommate who was spying on him with a webcam.

    >> dan abrams is nbc's chief legal analyst, dan, good morning to you, we already know that they have been charged with a couple of counts of invasion of privacy. but now we're hearing more about hate crime charges. are these charges coming from a solid legal place or are they coming from an emotional place?

    >> it's going to depend on the facts, there's two types of charges, there's the fourth-degree felony which is for filming the activity without the consent of the person. the more serious one, the third-degree is for distributing it. so now some are saying the prosecutors should add something on to that third-degree felony. if they can determine it was a hate crime , meaning intended to intimidate the person based on sexual orientation , they could up the possible sentence here from up to five years to up to ten years.

    >> but it's a big if and how do they go about connecting those dots.

    >> they're going to need more than just the text that we just read about him, quote, being a gay -- about making out. they're going to need to know that the reason that he did it, that his intent here was to intimidate him based on sexual orientation . that's going to be tough legally in a case like this. a lot of people are going to say wait a second, what do you mean it's going to be tough? look at the facts of what happened. the facts are one thing, but as a legal matter, you're going to have to show the intent of the person who was doing it.

    >> let me ask you how this might play into all of this. according to a report in the new york times t roommate danger robby tweeted back in august, this is well in advance of this going on that he, quote, just found out my roommate is gay, end quote. so now he has information, he then subsequently goes out setting up this webcam to record or distribute this encounter, does that play into it?

    >> it will be part of the totality of the circumstances. but basically they're going to have to show this was more than just a prank, right? because if it's a prank, the charges that are out there are the right charges. if it's more than a prank, meaning the reason he's doing it is because of the sexuality of his roommate, then you've got the possibility of the elevateded charges.

    >> it would be the state of new jersey bringing the hate crime charges.

    >> that's right.

    >> if the state decides not to go further and file those charges, could a federal prosecutor come in? because that's happened in the past and say no, we believe this is a biassed crime.

    >> theoretically, but probably not in this case. but by definition, in the federal law for a hate crime there has to have been violence involved and that would be even tougher to prove in a case like this. remember, new jersey has a pretty tough hate crime law meaning the burden is lower than for the federal crime , if new jersey doesn't go for it, very unlikely that the feds will.

    >> dan abrams , it's 7:36, let's