Baker ruled not dangerous, released

Ξ October 6th, 2007 | → | ∇ baywindows |

Issue Date: 3/20/2003, Posted On: 3/20/2003

Laura Kiritsy — Bay Windows

Alden Baker, Jr., a 53-year-old gay man, won his release from a state correctional facility March 14 after a jury in Middlesex County Court found that he was not a sexually dangerous person. The state had sought to incarcerate him for an indefinite period of time partly based on the argument that his taste for consensual sadomasochistic (S&M) sex play constituted a “mental abnormality” that made him a danger to society.

In a recent interview, Baker attributed his release to a courageous judge and the counsel of his attorney John G. Swomley of Boston. Otherwise, he stated, justice had nothing to do with it.

“I think it was just an accident,” he explained. “As far as we just happened to have 12 people who sat there who weren’t too homophobic … and thanks to [Swomley] taking them through the paces one by one in the face of a very vengeful district attorney. What can I say: the gods were looking out for me? I think justice is an accident in this system. I truly do.”

Baker was released from the Nemansket Correctional Center in Bridgewater, also known at the Treatment Center, where he had been held after completing a 10-year sentence at MCI Gardner for a rape conviction. He also completed a concurrent 43-month federal sentence for sexual exploitation of children, stemming from his operation of an electronic bulletin board on which child pornography was posted. When Baker was arrested for these offenses in 1991, police discovered a room in the basement of his Medford home equipped for S&M sex play. Officers also confiscated videotapes of Baker engaging in consensual S&M activity with other men.

Shortly before he was to be released in 2001, the state moved to classify him as a sexually dangerous person, defined by Massachusetts law as a person convicted of a sexual offense “who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility.”

Under the state’s 1999 sexually dangerous person statute, a person determined by the court to be sexually dangerous can be civilly committed to a Department of Correction treatment facility for a sentence of one day to life. Release is contingent upon completing sex offender treatment and a clinical determination that one no longer poses a threat to society. According to Swomley, the average length of confinement under the statute is 17 years.

After reviewing Baker’s court and prison records — Baker declined to participate in the state’s psychological evaluation — Dr. Ira Silverman, the state’s forensic psychologist and sexually dangerous persons specialist, determined Baker’s mental abnormality to be sexual sadism. Sexual sadism is defined by the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (DSM-IV), the main diagnostic reference for mental health professionals in the U.S., as “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving acts (real, not simulated) in which the psychological or physical suffering (including humiliation) of the victim is sexually exciting to the person” over a period of at least six months.

Silverman, however, omitted the phrase “real, not simulated” from the DSM-IV’s definition of sexual sadism in his written report on Baker, a copy of which was obtained by Bay Windows.

That phrase, said Baker’s defenders, was a crucial omission in Baker’s case. They contended practicing consensual S&M sex play is far different from deriving sexual pleasure from torturing an unwilling victim — and wholly legal. At Baker’s rape trial, partners who appeared in Baker’s confiscated S&M videotapes testified their encounters with him were voluntary and consensual.

Dr. Daniel Kriegman, a psychologist and former Treatment Center clinician evaluated Baker in February 2001. His report noted Silverman’s edited definition of sexual sadism and concluded, “There is no evidence in this case of real, not simulated sexual sadism over a period of 6 months or more,” and thus no grounds for such a diagnosis.

Swomley called a handful of sexologists and mental health professionals who testified that the state’s contention that Baker’s S&M proclivities are a mental abnormality were clinically and medically unsound. Among them were Dr. Fred Berlin, a psychiatrist who researches sexual disorders at the Johns Hopkins University School of Medicine and Dr. Charles Moser, a specialist in S&M who has published at least a dozen scientific articles on the subject.

Swomley said the arguments that consensual S&M play does not constitute a mental abnormality were successful. “The judge in this trial was very clear to the jury as to what they could and couldn’t commit him for,” said Swomley. “[He said] you cannot commit him for having consensual B&D sex with someone in your own basement. Cannot ladies and gentleman, that is against the law. Whether that filtered to their brains I don’t know; they didn’t find him [to be a sexually dangerous person] so I hope it did.”

Asked his opinion of the state’s attempt to use his S&M sexual practices as justification for civil commitment, Baker responded, “I took issue to the heterosexual affectation of S&M. … I have a problem with the label of S&M because you come up with a characterization of Hannibal Lecter or Jeffrey Dahmer and they see this, giggle and hoot, and they have no concept [of] what it is.

“I used to like to play with some of these doctors,” he continued. “I’d say we as queers, we have more body parts, we have more orifices, so we can do more things than you folks can. So we have to design what we’re going to do and that’s a wonderful experience. Rather than get into a relationship and have to posture oneself, we decide what we’re going to do, all right? I’m passive and you’re active, so let’s go from there and see where we’re going to go.” With no rulebook for such relationships, said Baker, “You design your own as you go along, and that’s beyond their comprehension. They’re so entrenched in the whole whips and chains of it, they can’t even begin to understand the psychology of it.”

While the outcome was favorable for Baker, who is now residing in the Boston area with friends and supervised by state and federal probation officers, his victory means the case sets no precedent for others who find themselves being prosecuted for consensual S&M sex play.

“We would have, or could have, had precedential value had we lost and then gone up and had an appellate judge say, ‘Oh no, no, that jury, those prosecutors, took his consensual activity and used it get him committed,’” Swomley explained. “And had an appeals court concluded … you can’t commit someone for that then it would have precedential value. But there will be no recorded decision in this case. We won. It’s over.

“While I personally prefer winning to losing and while I think for the client it’s always a better thing to have won than to have lost, the reality is I don’t get to make good law, by having a good judge overturn a bad decision,” said Swomley. “So unfortunately this case slips into the void as far as having precedential value.”

Laura Kiritsy is the Associate Editor at Bay Windows. Her e-mail address is


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