Cowardly Judges

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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.


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