News Slant The Guide News Slant Archive
May 2003
Leatherman spared life in prison for non-crime
By Jim D’Entremont
As he sentenced Alden Baker to a six-to-10-year prison term for the non-violent rape of his adult male limo driver, Judge Robert Barton could have assumed, in 1991, that the Commonwealth of Massachusetts would parole the 41-year-old leatherman four years later.
But by March 14, 2003, when a jury gave Baker his freedom, the justice system had changed. After serving his maximum sentence, Baker, now 53, had spent an additional 21 months in custodial purgatory while Middlesex County District Attorney Martha Coakley sought to have him civilly committed from one day to life as a sexually dangerous person.
During the late 1990s, the Bay State’s criminal justice apparatus had embraced and abetted a national trend toward stiffer penalties, harsher treatment of prisoners, and demonization of real or imagined miscreants, especially sex offenders. The Massachusetts Parole Board had stopped paroling people. In Kansas v. Hendricks (1997), the US Supreme Court had given its blessing to Sexually Dangerous Predator statutes implementing involuntary civil commitment. Under a 1999 post-Hendricks revision of the Commonwealth’s Sexually Dangerous Persons Act, the likelihood of open-ended detention for “treatment” had made any termination on criminal sentences imposed for sex crimes almost meaningless.
At a time of paranoid retributive justice charged with erotophobia, anyone outside the sexual mainstream can be punished for his lifestyle. The effort to prolong Al Baker’s imprisonment was fueled by anti-gay folklore, misapprehensions about the SM/leather community, and child-protection overkill.
In the civil commitment trial that began on February 24, Assistant DA Lee Hettinger and prosecutor Steven L. Hoffman locked horns with Baker’s defense counsel, Boston attorney John Swomley, who produced a succession of witnesses including psychologists Daniel Kriegman and Leonard Bard, California sexologist Charles Moser, forensic psychiatrist Fred Berlin of the Johns Hopkins School of Medicine, and James Kommiker, the man Baker was supposed to have raped.
Following the episode where his employer forced him into mutual oral sex– or so Kommiker claimed under pressure from local police– Baker’s driver had gone back for additional blowjobs on several occasions. By the time of the civil commitment trial, Kommiker was ready to assert that the case against Baker was overstated. “I want to help Al,” the alleged victim testified. “He did his time.”
Straining to convince the jury that Baker would rape again if set free, the prosecutors depicted him as a sadistic, unrepentant sexual compulsive with a penchant for underage boys and a fetish for non-consent. Their arguments were undermined by the inconvenient facts that Baker, described by one witness as “the biggest bottom I know,” leans toward masochism, and has never had any demonstrable sexual interest in anyone under 18. When Kommiker had sex with Baker, he was 29.
Behind the scenes– and in the courtroom, where she sometimes sat taking notes– lurked Martha Coakley, a politically enterprising DA whose media-tweaked reputation rests on her scorched-earth policies toward sex offenders. Coakley put herself on the prosecutorial map in 1993 by obtaining a conviction in the headline-grabbing, highly dubious, “recovered memory” child-molestation case of Lowell, Mass. grandparents Ray and Shirley Souza; she will soon begin the prosecution on similar charges of Rev. Paul Shanley.
The Baker case contained the kinds of lurid elements that exercise magnetic power over Coakley. During the original 1991 bench trial, prosecutors regaled Judge Barton with descriptions of Baker’s basement playroom– described as a “torture room” by one investigator– and videotape Baker had shot of sadomasochistic roleplay sessions involving himself and friends. Barton, a conservative Yankee, was so repelled that it became irrelevant that Kommiker had never entered that playroom, participated in videotaped orgies, or seen Baker’s videos. Though not admitted as evidence, the videos were once again cited as proof of Baker’s depravity at his civil commitment trial.
An aspect of the case with even greater Coakley-appeal was that while serving time on the rape charge, Baker concurrently completed a 43-month sentence for sexual exploitation of children. The “children” were young men of undocumented age, some of whom may have been young adolescents, appearing in 82 of about 3000 pictures uploaded by members of the Eagle’s Nest, a leather-oriented computer bulletin board Baker ran until his arrest. (The photos were one feature of a complex system, not its raison d’être.) The sentence meted out by a federal judge was the result of a plea agreement Baker insists he was forced to accept. Baker was not even permitted to see the pictures he was accused of disseminating.
Before his incarceration, Baker was an energetic business entrepreneur. At the time he ran the Eagle’s Nest out of his home in Medford, a Boston suburb, he had built up a prosperous– albeit controversial– business as a contract strikebreaker.
Baker’s company, Management Support Systems, supplied manpower and tactical assistance to management during strikes. Clients included Sears, the Knight-Ridder newspaper chain, and Anheuser Busch. Baker’s activities enraged union officials, including members of the Teamsters’ Boston Local; some believe that union operatives played a covert role in Baker’s arrest.
Defense witnesses at Baker’s civil commitment trial did include, however, at least two labor activists who were among his friends at the time of his strikebreaking career. Many of Baker’s associates, who span the political spectrum, remained loyal through his years of imprisonment, and looked forward to his June 16, 2001 release date.
Before that date arrived, however, Baker was transferred from the penal facility at Gardner, Mass. to the Nemansket Correctional Center, euphemistically known as the Massachusetts Treatment Center, located 30 miles south of Boston in the town of Bridgewater. There he spent months awaiting a hearing to determine whether civil commitment might be warranted, and then the civil commitment trial itself. During his time at the Treatment Center, a place he calls “an emotional death camp,” Baker resisted pressure to participate in therapy sessions tailored to those already committed.
Dr. Ira Silverman, the first state psychologist to evaluate Baker, did so without Baker’s cooperation. At the April 2002 probable cause hearing, Silverman asserted that Baker’s habit of cruising for sex, as well as his ownership of sex toys, amounted to evidence of mental abnormality. He also stated that Baker’s behavior fits the definition of sexual sadism present in the fourth edition of the psychologists’ Bible, the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).
Silverman clumsily (or shrewdly) omitted from his report the words “real, not simulated,” which, in the actual DSM text, distinguish between real “sexual sadism” and sexual roleplay. (The distinction is one Baker himself understands all too well: early in his prison term, when he was gang-raped, beaten, and shoved face-first into a toilet bowl, the actions– and the resulting pain and humiliation– were real, not simulated.)
Silverman’s report– the basis for the civil commitment trial– was excluded as evidence by Judge Ralph Gants, who presided at the civil proceeding. Predictably, the state’s Qualified Examiners, Drs. Niklos Tomich and Stephen DeLisi, followed Silverman’s lead in finding Baker sexually dangerous. Both are employed by Forensic Health Services (FHS), the treatment contract provider at the Treatment Center. “The contractor is the Department of Correction,” defense attorney Swomley points out. “DOC certifies FHS; FHS does what DOC wants– and, in the process, makes money on each inmate they commit.”
In testimony, Tomich noted that while Baker might not, after all, be a boy-lover, evidence did point to “sexual sadism” and suggest a paraphilia that “makes him sexually aroused in situations of non-consent.” Tomich said he would place Baker in the “sickest one per cent” of sex criminals. DeLisi called the Eagle’s Nest “a computer bulletin board for child pornography,” and referred to the “minor children” in the porn photos as if Baker had lined up actual young boys for serial sodomy.
On his own behalf, Baker testified that he had believed his sexual encounters with Kommiker were consensual. “I assumed consent,” he said, “because I wanted it to happen… and I was completely wrong.” Baker’s expert witnesses, while differing somewhat among themselves on issues of abnormality and dangerousness, rejected the state psychologists’ findings. “I see no evidence that there’s a daily struggle to fight off urges to rape,” said Dr. Berlin, describing Baker as “fundamentally a decent guy.”
“Twelve years ago,” Swomley told the jury in his closing argument, “Al Baker was found responsible for his behavior. Now he’s being told he’s not responsible and needs to be committed…. I ask you to determine that even leather queers have the right to walk the earth, to be free.”
To be judged sexually dangerous in Massachusetts, an individual must (a) have been convicted of a sex crime, (b) have a “mental abnormality” or “personality disorder,” and (c) be clearly inclined to reoffend. The prosecution maintained Baker met all three requirements, and that his sexual preferences constituted evidence of abnormality. The jury of four men and eight women decided, after three days’ deliberation, that it disagreed.
The outcome of the Baker case will not forestall more cases like it. Ironically, if Baker had lost, a successful appeal might have set a precedent stating that adults cannot be civilly committed because of their enjoyment of private, consensual kinky sex. But even in states where sodomy laws have been repealed or gutted, like Massachusetts, the US Supreme Court’s 1986 ruling in Bowers v. Hardwick– which says that states can outlaw forms of private, consensual sex– casts a shadow over all sexual minorities. The Supreme Court may reverse or revise Bowers in its current session when it addresses Lawrence and Garner v. Texas (see The Guide, January 2003), but civil liberties issues concerning paraphiliac behavior seem likely to linger.
Meanwhile, released from prison under supervision of both state and federal probation officers, Alden Baker has been required to register as a sex offender. The Massachusetts Sex Offender Registry, in assigning him a risk-level classification, will rely on the assessments of state-retained forensic psychologists. Martha Coakley and the state’s hired guns have, in a sense, prevailed.
Editorial from The Guide Editorials Archive
March 2003
High school civics class teaches that courts protect individuals’ civil liberties. Defending the Bill of Rights– with its guarantees of freedom of expression, equal treatment under the law, and protection from arbitrary state power– is, we are told, best done by a judiciary insulated from political pressures endured by other branches of government. And, indeed, the courts have at times protected freedoms that others have sought to erode.
But it is a myth that courts are immune from popular influences. The anti-sex hysteria that has plagued our country for the past quarter century has tainted recent judicial decisions. Among the most odious Supreme Court decisions ever penned are those in the last five years concerning civil commitment.
Civil commitment is a legal procedure whereby someone not convicted of any crime is nonetheless imprisoned. In a civilized society, such drastic action is reserved only for the violently dangerous. But our Supreme Court, in a political climate crazed with fear of sexual predators, has expanded states’ powers to lock away citizens whom prosecutors allege might commit a crime sometime in the future.
Though originally aimed at so-called “pedophiles,” anti-sex crusaders are seeking to expand civil commitment regulations to imprison all sorts of other perverts.
In Massachusetts, prosecutors are trying to commit Al Baker. They cannot point to anyone he has physically harmed, nor to any mental illness that makes him violence prone, nor even to any underage sex partners he has bedded. Instead, they allege that Baker’s enjoyment of S and M sex with consenting adults, his ownership of “more than 20″ sex toys, and his fondness for cruising for casual sex with other like-minded men demonstrate his “sexual dangerousness.”
In 1991, Baker was tried for raping a 29-year-old man. Prosecutors had a weak case; mutual oral sex over a series of Saturday nights wherein the “victim” kept coming back for more might not strike many as a prosecutable offense. But videotapes seized from Baker’s house showed Baker and other adult men engaged in rough-edged sex. Though the alleged victim never saw the tapes nor participated in the activities therein portrayed, and though the men videotaped all testified for Baker that they were fully consenting, the prejudicial damage was done and Baker was convicted.
Now, eleven years later, the state is hauling out the same old video as “evidence” of Baker’s on-going sexual dangerousness.
It is not surprising that district attorneys– elected in Massachusetts– are willing to abuse individual civil liberties. Crusades against witches or Communists or perverts routinely come from those eager to exploit fear for their own political ambitions.
What is appalling, though, is how craven judges have become. In civil commitment proceedings in Massachusetts, judges rubber-stamp prosecutors’ recommendations. In Baker’s case, for example, Judge S. Jane Haggerty found “probable cause” to hold Baker for a civil commitment hearing. The only “evidence” against Baker was the opinion of a state-paid psychologist who never met Baker and who relied solely on prosecution-supplied paperwork. He found, as he does in ninety percent of the cases the state pays him to assess, Baker to be “sexually dangerous.” And though prosecutors failed to file key paperwork on time (while Baker languished in prison), Judge Raymond J. Brassard ignored the law and ruled that Baker’s case would go forward despite gross prosecutorial error.
There is an old legal adage that it’s better for ten guilty men go free than for one innocent man to suffer. Massachusetts judges, fearing scandal should they set anyone free who might later commit a sex crime, have turned the aphorism on its head: in sex cases, cowardly judges say, better to jail everyone than risk my career by freeing anyone.
Clearly, in an hysterical political climate we cannot rely on judges to protect civil liberties. It must be we– the people– who demand more rational attitudes, social and legal, about sexual matters.
October 2002
Criminal Reads
The contraband’s in your hands
By Jim D’Entremont
The Guide’s subscribers and personals advertisers include scores of inmates at penal institutions across the USA. For gay or bisexual prisoners, this magazine can be a lifeline to a proud gay world beyond electric fences topped with razor wire. For that very reason, prison administrators are, with some regularity, stopping The Guide and publications like it from reaching the hands of incarcerated men.
The Guide’s policy is to avoid explicit photographic images of genitalia or hardcore sexual activity. But the magazine does run ads for sex-related businesses, images of discreet nudity, sexually explicit text, and articles that challenge orthodox thinking on sexual issues. In recent years, these factors have contributed to dozens of interventions by prison censors.
When prison authorities reject an issue of The Guide, notification (if any) can come in the form of half-completed single-page notices or detailed reports. Florida prisons provide photocopies of offending pages. Some Texan prison officials thoughtfully offer to slice pages that “qualify for clipping” out of the magazine. A typical contraband slip from a Texas penal institution reads, “A specific factual determination has been made that the publication is detrimental to prisoner’s rehabilitation because it would encourage deviated criminal sexual behavior…. Pages 103, 116, 117, 119, and 121 contain graphic depictions of men engaging in homosexual activity.”
Institutional censors cite visual images appearing in these pages more often than text, but written passages are targeted at times. Boyd McDonald’s “Sex Histories” have been giving prison mailroom workers attacks of the vapors for years. More chillingly, feature articles and even letters to the editor can precipitate impoundment.
Officials at Florida’s Okeechobee CI seized the September 1999 Guide because of a letter from a reader on age-of-consent issues and Bill Andriette’s piece “Gay Scouts: In Name Only.” (”Skinny-dipping, campfire circle jerks, strip poker, and sexual initiation rites may not be chapter headings in Scouting for Boys, but they remain expressions of the male bonding that is the organization’s glue.”) The contraband notice reads, “Threatens the safety of children.”
Most prison mailroom seizures of the The Guide ostensibly occur because of advertising layouts. Some Guide ads push the authorities’ buttons more assertively than others. The display ad that has sent prison censors into orbit most often, figuring in at least 60% of the magazine’s impoundments in 2001-’02, is that of the clothing-optional Canyon Boys Club in Palm Springs. The ad, in which frontal nudity has been obscured, includes a photo depicting several men cavorting in the clothing-optional resort’s outdoor pool. One man lies atop another on a rubber raft while a third man pulls the first man’s swimsuit down below his buttocks.
To the Institutional Division of the Texas Department of Criminal Justice, this constitutes a “graphic depiction of men engaging in homosexual activity.” To officials at Florida’s Columbia CI, it presents an intolerable instance of “naked men laying between the legs of other naked men.”
Other display ads prison officials have used as excuses to suppress The Guide include one for the California retailer Leather Masters showing a man cuffed to a St. Andrew’s cross (”sadomasochistic abuse” in Florida), and an ad for Montreal’s Sauna Centre-Ville, where a nude model stands with his back to the camera, while beside him a second man faces the camera, his hand on the crotch of his boxer briefs.
“We see bare butts in the shower every day,” points out one Guide subscriber in a New England prison. “What is this censorship meant to accomplish? Do they really think this will stop prison rape? I mean, please.”
More comprehensibly, prisons also bar material depicting construction of weapons, encouraging escape, or providing instructions for manufacturing drugs. But most penal systems keep their censorship criteria conveniently vague. Florida prisons ban reading matter that foments “group disruption,” is “dangerously inflammatory,” or “otherwise presents a threat to the security, good order, or discipline of the correctional system or the safety of any person.”
The Florida Department of Corrections’ regulations regarding sexual material are as specific as such regulations ever get. Proscribed are “(1) Actual or simulated sexual intercourse; (2) Sexual bestiality; (3) Masturbation; (4) Sadomasochistic abuse; (5) Actual contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is female, breast; (6) Any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.” Also inadmissible is any visual depiction of “nudity or a lewd display of the genitals in such a way as to create the appearance that sexual contact is imminent.”
These rules are always, in the end, applied subjectively. Censorship decisions are usually made by quasi-educated, low-level staff members who bring their religious beliefs, prejudices, and personal agendas to work every day. Whether or not a magazine gets past the censors depends on who happens to be on censorship duty at any particular time.
When mailroom gremlins reject a book or magazine, inmates rarely have recourse to any meaningful appeals process. Typically, impounded publications are held until the would-be recipient authorizes their destruction or requests that they be mailed to a friend, a family member, or the original sender. The latter option almost always means that the inmate must pay for postage.
Inmates and civil libertarians have fought prison censorship with limited success. In Amatel v. Reno (1998) a group of prisoners and publishers lost a federal challenge to regulations barring publications like Playboy and Penthouse from prisons on grounds that they are incompatible with the “rehabilitative environment” and create a hostile climate for female staff. On March 20, 2000, the US Supreme Court rejected without comment the appeal of Jonathan Mauro, an inmate at the Arizona State Prison at Florence, who had sued in 1995 for the reinstatement of his Playboy subscription.
Two days after Mauro lost his appeal, the ACLU of Colorado mounted a federal lawsuit challenging censorship of inmates’ reading matter by the Colorado Department of Corrections, citing an astonishing range of books and periodicals marked as contraband — including alternative newspapers, music magazines barred for “gang-related” content (i.e., depictions of rap artists), Laura Esquivel’s novel Like Water for Chocolate, and books by Morris Dees of the Southern Poverty Law Center. The suit is still pending. Meanwhile, the outcome of the Mauro case has made any publication concerned with sexuality fair game in prison mailrooms.
Putting gay under wraps
The homophobia behind prison censorship of gay books and magazines can be starkly explicit. Some prisons permit inmates to receive the Sports Illustrated swimuit issue or Victoria’s Secret catalogues, but suppress postcards showing Michelangelo’s David. At the Eastern Kentucky Correctional Complex, staff mail screeners confiscating issues of The Guide neatly pencil in “Homosexual magazine” beside Box 7 (”Contains unauthorized materials of a sexual nature as determined by the Literary Review Committee”) on the Notice of Unauthorized Mail form. Officers at the Kentucky State Penitentiary rejected the October 1999 Guide with the notation “Material promotes homosexual contact between males.”
Beginning with its August 2001 issue, The Guide has been banned at the Massachusetts Treatment Center, a facility for sex offenders. The Guide’s advocacy on behalf of Treatment Center inmates Alden Baker and Bernard Baran was a probable contributing factor. But the first three contraband citations were simply for “homosexuality.” After at least two prisoners complained to attorneys, the reason cited for seizing The Guide became “inappropriate sexual conduct.” But “inappropriate” still means homosexual. “That means I’m inappropriate,” says one inmate. “Why don’t they contraband me?”
(For months after the Treatment Center’s crackdown on The Guide, straight prisoners at that facility continued to receive certain softcore heterosexual publications. Recently, however, an issue of Maxim, in which seminude female models loll beside articles like “Unleash Her Inner Nympho,” fell into the hands of a female guard who called the mailroom and complained that Maxim was “disgusting and inappropriate,” the magazine was banished from the premises.)
Sometimes inmates’ gay publications quietly disappear without achieving contraband status. This can happen to a magazine as slick and cautious as The Advocate. “When I don’t get my magazine,” says an incarcerated Advocate subscriber, “I think, well, yeah, it could have got lost or stolen… but there are other guys here who get The Advocate. Usually, when one of us doesn’t receive it, nobody does. They just make some issues vanish.”
Penal systems are attempting to make the fantasy lives of inmates vanish, and to sterilize their thoughts. Most of these inmates will sooner or later be released into a world brimming over with sexual messages, a world that no purported rehabilitation program will have prepped them to inhabit. Their keepers pretend to believe that withholding sexual stimuli from prisoners will nudge them toward lives of Puritan rectitude, both behind bars and after their release. It’s doubtful, however, that prison administrators are sincerely fearful that certain reading matter might lead inmates to masturbate. Their real fear may be that certain reading matter leads inmates to think.
In her impassioned dissent from the DC District Court’s pro-censorship Amatel v. Reno decision, Judge Patricia Wald expressed concern about “an overwhelming risk of overregulation and invasion of the innermost recesses of the human mind and spirit” in the name of inmates’ rehabilitation. “Indeed,” she wrote, “undertaking the Herculean task of ‘character-molding’ is inherently problematic in its First Amendment implications, for it presumably involves casting emerging prisoners in society’s own image. This, of course, is the antithesis of First Amendment freedoms.”
July 2002
Civil Commitment
A growing threat
At the North Central Correctional Institution in Gardner, Massachusetts, Alden Baker served out a ten-year sentence for raping the 29-year-old man he employed as a driver. He maintained an almost flawless record of good behavior as he inched toward a June 2001 release. “I thought,” he says, “if I could just make it through, I’d be able to put those ten years behind me and move on.”
But shortly before his release date, the Middlesex County District Attorney’s office obtained an order to transfer Baker to the Massachusetts Treatment Center for Sexually Dangerous Persons at Bridgewater. Now, more than one year after completing his sentence, the 52-year-old Baker, who insists he is innocent of rape, remains incarcerated pending a civil trial whose outcome could facilitate his permanent detention. (See August 2001 and May 2002 Guide editorials.)
Acting on state legislation passed in 1999, the Commonwealth of Massachusetts is seeking to prove that Baker, once considered sufficiently responsible for his actions to be criminally tried for them, can be reassessed as an individual whose lack of self-control poses a threat to society. If a jury finds that Baker is a “sexually dangerous person”– a disordered individual whose behavior patterns are compulsive– he can be kept at the Treatment Center from one day to life without the imposition of a criminal sentence.
The process reflects a national trend toward circumventing criminal law through civil procedures. One-day-to-lifetime civil commitment, the most extreme result of that trend, is now an option in at least 16 states. Some version of an active civil commitment statute exists in Arizona, California, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, North Dakota, New Jersey, South Carolina, Texas, Washington, Wisconsin, and Virginia. Legislation is pending in at least a dozen more, including New York.
The concept of incarceration without a prison sentence isn’t new. But civil commitment used to be reserved for the overtly insane, or for sex offenders who, with a mental health professional’s endorsement, voluntarily entered treatment programs while serving their criminal sentences. Contemporary civil commitment legislation is descended in part from “defective delinquent” and “sexual psychopath” laws passed in the early-to-mid-20th century to facilitate removing “deviates” from society. The difference is that now, an inmate need not be mentally ill, just “abnormal” or “disordered” and “volitionally impaired,” to qualify for commitment.
The current model for state laws aimed at detaining sex offenders is a stringent piece of panic legislation passed in Kansas following the 1993 rape and murder of a University of Kansas student by a man who had a previous rape conviction. The intent of the 1994 Kansas law was to prevent sex criminals perceived as likely to reoffend (despite the statistically low rate of sex-offender recidivism) from returning to the streets.
The Kansas civil commitment law and related measures have been filtered through a number of US Supreme Court rulings that have defined and redefined their powers. (See box.) The court’s Kansas v. Hendricks ruling, which upheld the Kansas Sexually Violent Predator Act, encouraged the passage of clones of the statute in other states. In almost every case, an authentically atrocious incident was used to justify locking ‘em up and throwing away the key. In New Jersey, the 1994 rape and murder of seven-year-old Megan Kanka led not only to civil commitment legislation, but to a widely emulated system of sex-offender registration under “Megan’s Law.” In Massachusetts, public outrage over the 1997 murder of ten-year-old Jeffrey Curley resulted in draconian rewrites of existing sex-offender statutes.
Provisions and criteria vary from state to state. In Kansas, a sexually violent predator (SVP) is anyone “who has been convicted or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence.” In Iowa, SVP status can be achieved through vaguely defined “sexual misconduct.”
Some states restrict civil commitment to perpetrators of genuinely violent crimes. In Michigan, only an inmate who has committed murder in the course of his or her sexual offense can be detained by civil proceedings. Elsewhere, offenses resulting in civil commitment can range from violent rape to sedate fondling, from genital mutilation to “indecent exposure.” In Massachusetts, almost any sex crime can result in an extension of imprisonment past the chimerical release date indicated by the inmate’s original sentence.
The legal rationale for allowing this apparent double jeopardy is that since the commitment results from a civil proceeding, not a criminal trial, it does not constitute punishment. The civil trial may take on all the attributes of a criminal trial, including the presence of the same judge and prosecutors involved in the original criminal process, but its purpose and result are ostensibly different. The facility to which the detainee is remanded may be a guarded compound run by the state’s Department of Correction, but since it is called a treatment facility, not a prison, its role is not deemed punitive.
“It doesn’t matter what they call it– what should matter is the effect it has,” says Larry Frankel of the ACLU of Pennsylvania, a state where attempts to pass a sex-offender detention law have thus far failed. “The effect of civil commitment,” Frankel insists, “is to punish someone twice for the same crime.”
Three months after the Hendricks decision, the National Association of State Mental Health Directors (NASMHPD) adopted a resolution stating, “Laws which provide for the civil commitment of dangerous sex offenders for purposes that are primarily punitive or for the purpose of continuing confinement, rather than for the purpose of providing treatment or psychiatric services, disrupt the state’s ability to provide services for people with treatable psychiatric illnesses and undermine the mission and integrity of the public mental health system.”
But laws addressing sex offenses have achieved a spurious moral heft that flattens both therapeutic and constitutional considerations. Sex-predator laws, measures that pretend to protect public safety while caring and curing, appeal directly and viscerally to public appetites for vengeance and punishment. In a climate of “zero tolerance,” authorities who find the Bill of Rights inconvenient have succeeded in instituting preventive detention by changing its name.
They have also managed to erode Miranda rights, lawyer-client and doctor-patient confidentiality, and the Fifth Amendment promise of due process of law. There are now sex-offender exceptions for the US Constitution’s Article I provision against ex post facto liability for actions committed before they became illegal; for its First Amendment guarantee of privacy; for its Fifth Amendment safeguards against double jeopardy and self-incrimination; for its Eighth Amendment proscription of cruel and unusual punishment; and for its Fourteenth Amendment guarantee of equal protection for all citizens.
In 1999, when the California Supreme Court upheld the state’s 1996 Sexually Violent Predator law in Hubbart v. Santa Clara County, the court declared, “Rather than await a re-offense and offer condolences to the family of the victim, the people are not only ensuring that predatory, violent sex offenders be removed from society, but at the same time ensuring that they receive whatever treatment psychiatry can offer for their maladies.” Justice Marvin R. Baxter described the law as a “non-punitive civil commitment scheme covering… sick persons.”
In April 2002, convicted rapist Patrick Ghilotti, the first of California’s 330 civilly committed inmates to complete the SVP treatment program at Atascadero State Hospital, was recommited– presumably for non-punitive reasons– just before his release. The assertions of three mental health evaluators that Ghilotti is no longer dangerous were ignored.
Leaving aside questions of whether certain sex offenders can or should be “cured,” it’s fair to ask how many of those detained were ever dangerous, and how many are being kept under lock and key because of society’s distaste for kinks or paraphilias that harm no one. Psychoanalyst Thomas Szasz, who calls the involuntarily committed “society’s scapegoats,” insisted as long ago as 1968 that a determination of dangerousness “depends on the observer’s religious beliefs, political convictions, and social situation.” Determinations of sexual dangerousness may also depend on the observer’s erotic orientation and vision of sexual ethics.
In 2002, a fusion of reactionary law-and-order mores and “progressive” victim culture has shaped a system that echoes the Soviet Union’s practice of detaining dissidents in mental hospitals. That similarity is not lost on the inmates at Atascadero State Hospital, who call their facility a “hosprison,” and occasionally publish an unauthorized newsletter called Voices from the Gulag.
Many of those trapped in the system are gay men whose non-vanilla sexual lifestyles are distasteful to many. The real purpose of sex-offender legislation may be not so much to protect society from behavior that genuinely threatens children and others, but to shield it from the notion that many forms of non-procreative, non-monogamous, non-marital sex can have positive value.
At Al Baker’s recent probable cause hearing, the Commonwealth of Massachusetts provided a list of his personal kinks as evidence of an intractably depraved personality. Prosecutors and their pet expert, Dr. Ira Silverman, stressed his participation in the leather-SM scene, his possession of sex toys, his habit of cruising for sex, and his occasional practice of videotaping sexual encounters. Judge S. Jane Haggerty, who could have granted Baker his freedom, ruled in favor of a civil trial.
The original charges were based on reciprocal oral sex Baker had with his limo driver on various occasions in 1990. While these sexual encounters did not have sadomasochistic overtones, Baker was at that time proprietor of the Eagle’s Nest, a Boston-area computer bulletin board serving the leather-SM community.
The “victim,” who was subjected to intensive police interrogation before he agreed to cooperate, returned to Baker’s house for more sex even after testifying against him before a grand jury. Once the rape charge was in place, police conducted a fishing expedition into Baker’s home, seizing computers, videotapes, sexual paraphernalia, and other material. Pictures of young men, most probably in their 20s, posted at the Eagle’s Nest or otherwise found in Baker’s possession, were alleged to link Baker to child pornography.
At his 1991 bench trial, prosecutors cited the presence of a “dungeon” in Baker’s basement (”They called it a ‘dungeon,’” says Baker, “I called it my ‘playroom.’”), and exhibited videotape of Baker’s SM sessions with several sex partners– edited by the D.A.’s office for lurid effect. The limo driver had neither participated in the basement play sessions nor seen the video footage, but prosecutors were able to use these elements to portray Baker as degenerate. (The irony of a culture that revels in punishment taking exception to sadomasochism seems to have been lost on Baker’s prosecutors.)
Outsiders often take fantasy elements of the leather-and-bondage scene literally and misread SM sex play as sinister. The left-wing feminist screed Against Sadomasochism describes SM as an attempt “to replicate the phenomenology of oppression through role-playing,” and stigmatizes the practice as abusive and politically unacceptable. Right-wing zealots like Kinsey debunker Judith Reisman promote the idea that SM links gay men to Nazis. Whatever his personal politics, the staid, middle-aged, heterosexual presiding judge readily bought the idea that Baker’s lifestyle was sufficiently degraded to frighten and intimidate a vulnerable employee.
The degree to which Baker’s alleged victim was coerced, if at all, would seem to have warranted less than a decade’s imprisonment. But in 1991 Judge Barton could not have anticipated that Baker would not only serve every day of the ten-year sentence he imposed, but remain in prison after it ended.
At the Massachusetts Treatment Center, a secure facility topped by a watchtower and ringed by tall chain-link fences festooned with razor wire, over 180 civilly committed prisoners coexist with about 350 state inmates. Baker and 47 “civils” share a unit designed for 24 persons. Lights burn brightly all day; noise is constant. Inmates are taunted by guards and by one another.
The environment strips self-esteem away and replaces it with emotional pain that Baker describes as “a large sequestered anger.” As a 32-year-old civil prisoner named Ron discovered recently, an inmate’s anger can be cited to justify his civil commitment. Imprisoned past the end of a lengthy sentence for sexual contact at age 16 with a younger boy, Ron finds anger hard to defuse.
Similar facilities in other states are typically administered by the indigenous department of mental health. The Massachusetts Treatment Center, whose therapeutic programs are provided by outside contractors, is completely under the thumb of the Commonwealth’s Department of Correction.
At all such facilities, the inmates are subjected to an array of therapeutic protocols and diagnostic tests, including aversion therapies aimed at associating sex with bad odors, penile plethysmography (see The Guide, February 2002), drug therapies, and group sessions. At many treatment centers, one-on-one interactions between therapists and inmates are confined to psychological testing and such questionable exercises such as EMDR– Eye Movement Desensitization Response. Confidentiality does not exist.
The nature of an inmate’s offense may have minimal bearing on his treatment program. As journalist Mark McHarry states in his November 2001 Z Magazine analysis of sex-predator laws (http://zmag.org/zmag/articles/nov01mcharry.htm), “Many programs are not individually tailored but employ a cookie-cutter approach for everyone from an older violent rapist to a young adult man who had consensual sex with his underage girlfriend.” Gay inmates are often at the mercy of therapists who behave as if homosexuality had never been removed from the Diagnostic and Statistical Manual of Mental Disorders. At Minnesota’s Moose Lake treatment facility, where more than half the 147 inmates are gay or bisexual, there is no gay-identified staff member.
Release, rarely granted, depends on self-incrimination and remorse. Protestations of innocence are interpreted only to mean that the inmate is “in denial.” Inmates are required to recognize the damage done to victims, even when those “victims” were consenting partners. In determinations of sexual dangerousness, the burden of proof is placed squarely and impossibly on the inmate.
This is not to say that the inmate is in any way master of his fate. Decisions on whether to institute or terminate civil commitment can be based on biased and tamper-prone risk-assessment schemes. Many of these criteria are the invention of Ottawa-based penal psychologist R. Karl Hanson, whose best-known risk scale, Static-99, is widely used in North America, Europe, and Taiwan. Ira Silverman’s unfavorable Static-99 assessment of Al Baker was a point of contention in Baker’s probable cause hearing.
Static-99, which is supposed to measure the long-term risk potential of males over 18, tallies ten factors: prior sexual offenses, prior sentencing dates, convictions for non-contact sex offenses, current and prior convictions for non-sexual violence, victims who are relatives, victims who are strangers, male victims, the offender’s age at the time of the evaluation, and whether or not the offender is married. The test’s biases emerge most clearly in its interest in male victims and the subject’s marital status.
Prosecutors rely on a growing number of mental health professionals who seem eager to exploit such biases while crafting made-to-order portraits of sex offenders as predatory beasts. The new term sex predator semantically determines public perception not only of violent sex criminals, but of sexual dissidents. The discarded term psychopath might at least suggest a human being in need of help; the word predator evokes some non-human, malevolent entity, like the creature in Alien. In the early 21st century, sex-offender legislation is the art of conjuring monsters.
The erosion of Constitutional protections for sex offenders– or anyone ensnared by the American criminal justice system– began in the Nixon era, when the Supreme Court under Chief Justice Warren Burger began to chip away at rights established by the liberal Warren Court. In the Reagan-dominated ’80s, Republican denunciations of civil libertarians as “soft on crime” gained credibility. When the Reagan Administration’s Task Force on Violent Crime sought fewer strictures against use of illegally obtained evidence, and endorsed preventive detention, Middle America seemed to approve.
As David Rudofsky of the Defender Association of Philadelphia pointed out in a 1984 essay, the idea had arisen that “adherence to constitutional protections for the accused is incompatible with effective law enforcement.” Rudofsky observed that the typical end result of law and order campaigns is “enhancement of state power at the expense of individual rights, but virtually no reduction in crime.”
The observation remains accurate. Continuing the mission of the Burger Court, the Rhenquist Supreme Court is applying itself to disassembling the rights of the accused and the rights of the convicted. Meanwhile, John Ashcroft’s Justice Department works to convince Congress and the American public that new and extraordinary powers of law enforcement are needed to meet the occasionally overlapping threats of terrorists and free-range perverts.
Those expanded powers give the US government the means of probing more deeply into the private lives of all Americans. They provide officials with the means of creating new sex criminals at their convenience. At the very least, they represent a return to the days when J. Edgar Hoover’s FBI could seek to discredit a Martin Luther King, Jr. by delving into his love life.
Constitutional protections have weakened since the days of the civil rights movement. As legal scholar Sherry Colb warns in commentary published online by FindLaw.com, the Rhenquist Court’s approval of civil commitment for sex crimes “puts all of our rights in jeopardy– for if criminal procedure protections can be stripped away merely by calling an individual ‘mentally abnormal’ and impaired in his ability to control impulses, the protections become matters of sovereign grace rather than clear entitlement.”
Some citizens are fighting back. Although the American Civil Liberties Union has, in the words of one criminal justice activist, been “next to useless” in safeguarding the rights of sex offenders, the ACLU of Illinois is helping four civil inmates at the Joliet Correctional Center sue the state for adequate treatment. In Minnesota, Moose Lake inmates have secured a Patients’ Bill of Rights and a Resident Advisory Council– following, says openly gay inmate and Council cochair Rodger Robb, “two years of nasty fighting.”
There are grassroots efforts to counteract demonization with compassion. Families and friends of civilly committed inmates– and inmates themselves– have formed Citizens for Reform (www.geocities.com/citizensforreform/Citizens_For_Reform.html), a national network attempting to change the system and improve the lot of civil prisoners. “Some of these individuals did horrible things,” says Citizens for Reform coordinator Deanette Cole, “but they’re people. They’ve done their time. The system is unjust and expensive and it simply doesn’t work.”
Founded in 1998 by Tamara Menteer of Ollala, Washington, the Whitestone Foundation (www.whitestonefoundation.net) has religious underpinnings that include a belief in forgiveness and “God’s unconditional love of mankind.” The organization serves as a practical clearinghouse for information about sex-offender treatment and restorative justice. Its mission is “to increase dialogue and critical analysis of civil commitment nationwide” and “to empower those involved in such schemes to create fair programs dedicated to rehabilitation rather than continued punishment.”
Among criminal justice activists and prison reformers outside prison walls, gay men and lesbians are almost invisible. The indifference of middle-class progressives, both gay and straight, to the plight of civilly committed sex offenders may be as attributable to distaste for the predominantly working-class prison population as to revulsion toward its crimes. The gay movement, now dominated by wine-and-cheese corporate groupies (some of whom may even have sex with their limo drivers), has ceased to care about civil rights in a meaningful way.
In his recent book Sex-Crime Panic, Lambda Literary Award winner Neil Miller describes a group of gay men’s involuntary internment in an Iowa mental hospital in the 1950s. He examines the panic that produced the incident, but fails to relate it to the sex-crime panic of the present day. Asserting incorrectly that “at least [current laws] do target people who have committed violent sexual offenses,” Miller reaches the virulently naive conclusion that “If something similar happened today, gay political and legal organizations– to say nothing of the American Civil Liberties Union– would jump into the fray.”
Miller is expressing a delusion that pervades the gay community. Those who cling to the myth of constitutional protection might well take a closer look at what remains of that protection, and ask whether democracy can be said to exist in a country whose criminal justice system is fundamentally flawed and unfair.
Editorial from The Guide Editorials Archive
May 2002
Students of history are sometimes left wondering why victims of horrific pogroms and persecutions did not “see it coming.” Of course, hindsight is famed for its clarity, but often oppressive measures seem so clear, so calculated, that it is hard to imagine how victims ever tolerated the build-up to more final solutions.
Folklore tells us that if you put a frog in a pot of boiling water, he’ll hop out but that if you place him in cold water and only slowly turn up the heat, he’ll stay complacently in the pot, oblivious to his ultimate fate. And so it frequently is with political oppression: gradual erosion of civil liberties over time can lead to initially unimaginable horrors. By not alarming too many too fast, tyrants can avoid chasing runaway frogs all the while bringing the pot to a deadly boil.
The Middlesex County (Massachusetts) District Attorney’s persecution of Al Baker must alert any member of a sexual minority that the heat is on.
Baker was convicted in 1991 of raping a 29-year-old man and later of allowing nude pictures of teenagers to be posted to a bulletin board he ran. Baker claimed the oral sex he had with the “victim” was fully consensual, an assertion confirmed by the fact that the “victim” returned repeatedly for more such sex, even after secretly alleging his “rape” to a grand jury! Baker also noted that the illegal pictures were but a tiny part of his gay bulletin board and portrayed sexually mature teens, not children. Nonetheless, Baker was convicted and served ten years in prison, always a model prisoner hard to do as a queer sex offender. (For more on the travesty of Al Baker’s trial, see “Free Al Baker,” August 2001, on-line at www.guidemag.com)
Now, almost a year past his scheduled release date, Baker is still incarcerated as Middlesex County tries to have him branded a “sexually dangerous person.” If they succeed, Baker, 52, will likely die in a prison euphemistically called a “treatment center.”
During court proceedings, prosecutors could not fault Baker’s comportment while in prison. Nor could they allege that he exhibited any compulsion towards violence. So what reason did they offer for condemning Baker to a psychiatric hospital for life?
Prosecutors relied on the testimony of Dr. Ira Silverman, a psychologist who has never examined Mr. Baker. Based on paperwork (supplied by the prosecution), Silverman (paid by the state) labeled Baker a “sexual sadist” suffering from “anti-social personality disorder.” And what evidence did Silverman, also known as “Dr. Dildo,” offer for his damning opinion?
Silverman alleged that Baker’s ownership of “twenty or so” sex toys, such as dildos and buttplugs, demonstrated that he was sufficiently sexually “deviant” as to be labeled dangerous.
Silverman asserted that gay men who “cruised” for other like-minded, of-age men were exhibiting punishable behavior.
And the prosecution elicited from Silverman testimony that S&M sex play between mutually consenting adults was pathological and in need of forced “treatment.”
Many in the gay community have, like docile frogs, deluded themselves into thinking that the new Draconian pornography and sex laws passed in the last two decades have been aimed at those the state labels “pedophiles.” But Baker’s persecution makes clear that the state has bigger plans for filling their sex gulags. If you own sex toys, if you like to cruise for sex, if you enjoy S&M play with like-minded partners, you are already in hot water.
We must demand that the state stop overheated anti-sex crusades. Contact Middlesex County District Attorney Martha Coakley (617/679-6500; martha.coakley@state. ma.us) and insist she cease persecuting Al Baker for legal, constitutionally protected sexual expression. And in your own community, demand cooler, rational discourse as an antidote to the fevered hysteria that seems to inevitable attach itself to sex cases.
Editorial from The Guide Editorials Archive
August 2001
In the last 20 years Stalinistic legislation has tremendously eroded Americans’ civil liberties. “Child pornography” is now so broadly defined that no children (nor even any nudity) need be involved. Possessing images that state experts think evoke a sexual response by the owner is a crime. And thousands are now incarcerated in “treatment” gulags, not serving time for anything they did, but rather jailed for crimes bureaucrats imagine they might commit.
Anyone who thinks that such violations of civil rights are visited only on the monstrous should consider the case of Al Baker. Baker is currently at Massachusetts’s Bridgewater Treatment Center where he is officially a “resident,” but a “resident” surrounded by razor wire, bunked with violent criminals, and shackled when transported.
Baker was arrested in 1991 on two counts of rape of a 29-year-old man. This man waited three months (during which time he and Baker continued friendly relations) to claim that the oral sex he and Baker had earlier was not consensual (though in court he admits he returned voluntarily week after week). Why was Baker convicted on so flimsy a case? In court the prosecution paraded whips and dildos taken from Baker’s basement playroom, even though the alleged victim had never been shown the toys nor the playroom! The prosecution played a videotape of Baker enacting kinky, but completely consensual, scenes with adult partners that had nothing to do with the acts Baker was convicted of! Al Baker was railroaded because he was a leatherman with a non-vanilla sexual repertoire– what judge wants to set such a pervert free?
Pursuant to Baker’s rape charge, police raided his house. Baker had hosted a computer bulletin board for leathermen; among the thousands of electronic images seized (most of the Tom of Finland variety), prosecutors alleged that 22 of the guys portrayed were minors. Anyone looking at the pictures could see that the models were not children and could just as easily be 23 as 17. But Baker lacked records proving the age of each model, and he was charged with 187 counts of “sexual exploitation of children.” (Each time a bulletin board user downloaded one of the photos– the likes of which can be found on thousands of popular, mainstream web sites today– Baker was charged with another count.)
Baker wrapped up his full sentence this past June, always a model prisoner. But he is still imprisoned. His prosecutors claim he has a “personality abnormality” and thus is a “sexually dangerous person” to be incarcerated indefinitely.
Legal fiction maintains that such imprisonment is not punishment, but rather treatment. A state-paid examiner reviewed Baker’s record (along with unsubstantiated police hearsay) and determined, having never met Baker, that he is sexually dangerous and in need of involuntary civil commitment.
In a classic Catch-22, any protest by Baker is seen as a denial of his responsibility. Baker has steadfastly refused to take part in a “sex offender treatment program,” in part because he would have been required to sign away rights against self-incrimination; anything revealed to his “therapist” could, and most-assuredly would, be used against him in court. Prosecutors claim that by thus asserting his rights, Baker proves his guilt.
The court will decide Al Baker’s fate in the coming months. Prosecutors are trying to expand the definition of “personality abnormality” to include not only those branded pedophiles, but also guys like Baker who embrace a more creative view of sexuality with like-minded, consenting adults. Prosecutors hope that by tainting Baker with bogus child pornography charges, we will overlook their expanded attacks on civil liberties.
But as gay people, we remember that until recently all of us were deemed criminally sick and deserving of the “treatment” now being forced on Al Baker. Justice and forward-looking self-interest compel us to demand that the court end Al Baker’s ordeal and set him free.