Narrow Reprieve

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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’ĂȘtre.) 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.

 

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