Protecting Gay Kids by Punishing Bullies: Some Legal Questions

Columbia Law School Center for Gender and Sexuality
Queer Theory Workshop: Theory Meets Practice
September 18, 2012: Hate Crimes/Bullying Laws

As part of the Columbia Law School Center for Gender and Sexuality’s ongoing Queer Theory Workshops, I recently attended a panel that included Eliza Byard, Executive Director of GLSEN, and Richard Kim, Executive Editor at The Nation.  At issue were hate crimes and anti-bullying legislation, particularly as seen through the lens of the Dharun Ravi case in New Jersey that resulted from the aftermath of Rutgers freshman Tyler Clementi’s suicide in 2010.

The panel did a wonderful job of problematizing legislative and criminal remedies to the “problem” of bullying by asking how they actually function and are implemented, regardless of their ideal goals or intentions.  Kim, in particular, provided a chilling analysis of the application of hate crime style laws, which, as he noted, are utterly typified by the Ravi case.  Since violent crimes generally need no sentencing enhancement in most States today because sentencing is already so harsh, bias crime statutes have largely been directed at individuals under twenty years old, especially people of color, to secure jail time for typically nebulous events of “harassment” or “mischief.”  Far from responding to a lack of punishment for murder or violent assault against minority groups or lesbians and gays, then, these statutes have instead resulted in the imprisonment of minors for nonviolent offenses like Ravi’s “invasion of privacy,” which was the anchor of the criminal case in which he was also found guilty of “bias intimidation” under New Jersey law.

Dean Spade, who was in attendance as an audience member, extended Kim’s analysis to add that the legal protection of a new group, lesbian and gay people, has become entirely dependent in recent years on pre-existing apparatuses of racist detention, punishment, discipline and incarceration so violent in and of themselves that they call into question the logic of an ostensibly progressive political movement (mainstream LGBT politics).

Indeed, the workshop illustrated that the legislative push in response to bullying is resulting in what I would term the criminalization of bullying: the legislated production of a new population, gay children, bound to the simultaneous targeting, discipline, detention, and punishment of a new perverse population of bullies, who tend to be always already racialized.  There are two serious consequences of this incipient process in the United States that should give us pause for reflection: first, the production of a new population to be cared for and protected (gay children) is being produced as a white, middle class one adaptive to neoliberal models of individual success and the security state.  This kind of affirmative recognition, then, is also a form of exclusion of all those children who will not fit into the Tyler Clementi model of the queer child for reasons of race, poverty, or gender identity.

Second, and related to the first point, these other children are precisely those that will be subject to technologies of punishment and imprisonment under these new anti-bullying or hate-crimes laws.  Hence, someone like Dharun Ravi is rendered so perversely other that he could never have been or ever be queer; rather, his body is made available for punishment, or even deportation, in order to retroactively protect Clementi’s.  I think this case moves us to reevaluate how benevolent forms of caring and protective governance through recognizing, for the first time ever, a whole population of gay children in the United States, is complicit with forms of violence that run against the spirit of anti-bullying politics.  It also reminds us that taking on a political issue around a single axis of identity (sexuality) is woefully incomplete without interfaced analyses of race and class.