Editor’s letter to the editor re Rough Sex

Ξ October 6th, 2007 | → 0 Comments | ∇ the boston phoenix |

The Guide Magazine
PO Box 990593
Boston, MA 02199

(617) 266-8557, fax (617) 266-1125

www.guidemag.com

Kudos to Harvey Silverglate and Joshua Gewolb for warning your readers (in “Rough Sex,” Aug 1-8, 2002) that Middlesex County District Attorney Martha Coakley is crusading to brand those who engage in consensual, adult/adult S&M sex as dangerous perverts deserving commitment to a prison euphemistically labeled a “treatment center.”

Silverglate and Gewolb rightly note that Al Baker, who has consistently maintained his innocence and is currently being held at the Nemansket Correctional Facility in Bridgewater, has had his privileged attorney/client mail seized and has been denied access to literature key to preparing his defense. However, the civil liberties violations suffered by Baker (and thousands of others similarly situated) are myriad.

Baker’s initial 1991 trial, in which he was convicted of two counts of raping a 29-year-old man, was a travesty. Baker’s accuser waited months before alleging the mutual oral sex they had on a series of Saturday nights was rape. In fact, he continued to see (and have sex with!) Baker after he had testified about his “rape” before a grand jury. He offered no coherent reason why he waited so long to report his “rape” nor why he continued to socialize with Baker, lending credence to Baker’s assertion that he was set up by Teamsters (the key police informants were union officials) livid with Baker’s company’s role in providing non-union labor to striking work sites.

At the trial, prosecutors played a redacted videotape of Baker’s self-taped S&M frolics with other like-minded adults, none of whom had anything to do with the alleged victim– who neither saw any of the tapes nor participated in any of the kinky activities portrayed. Though those appearing in the tapes all testified for Baker, the damage was done as the court saw Baker as a growling master of rough sex.

Pursuant to his rape arrest, Baker’s home was ransacked. Among the 3000 or so images found on the gay bulletin board system Baker ran, prosecutors alleged that 22 models were under age 18, and thus their pictures constituted child pornography. Though the models were all young adults who could as easily be 23 as 17, lacking proof of age, Baker was charged with 187 counts of “child sexual exploitation,” one count for anytime anyone anywhere on the planet downloaded one of the suspect images (the likes of which can be found on mainstream web sites maintained by Yahoo and similar ventures).

Having served ten years as a rapist (who never raped) and a sexual exploiter of children (who never touched a child), Baker is now threatened by lifetime incarceration by Middlesex County prosecutors. A paid-by-the-state “expert” Ira F. Silverman, after reviewing only paperwork supplied by prosecutors– never seeing or speaking with Baker, swore that Baker was “sexually dangerous.” Silverman testified that because Baker owned “twenty or so” sex toys, because he like to cruise for sex with other like-minded adults, and because he enjoyed S&M sex, he was sick and in need of “treatment.” Silverman, whose legendary quackery has earned him the moniker “Dr. Dildo,” flirted with perjury by omitting in his report key language from the psychiatric manual which distinguishes between “real” and “simulated” sadistic activities. (Baker carefully staged his S&M scenes with other willing adult participants; his sadism was clearly “simulated,” not “real.”)

And Middlesex County contends that Baker’s refusal to participate in a sex offender treatment program confirms his dangerousness. But if he were to participate, nothing he said to clinicians (who would be probing for his deepest sexual fantasies) would be confidential– everything he said would be recorded and used against him in court, even if it had nothing to do with his alleged “crimes.” Clearly, no one with competent counsel would agree to divulge sex secrets to a policeman masquerading as a doctor.

Additionally, Middlesex County is looking to resurrect that redacted videotape to once-again inflame the court that will be deciding Baker’s fate. But prosecutors conveniently cannot locate any of the other voluminous, potentially exculpatory, evidence seized for Baker’s initial trial.

The spectacular sex hysteria that currently grips our culture means that egregious abridgments of constitutional rights are condoned by judges fearful of landing on the front page as “soft on child molesters” and that prosecutors like Martha Coakley (who made her career prosecuting innocent people accused of literally unbelievable daycare abuses) will continue to demonize sexual minorities in service of her political ambitions. And with John Ashcroft the nation’s top cop, one doesn’t have to be a resident of puritanical Middlesex County to be very worried about what’s happening to Al Baker.

French Wall

 

Rough Sex

Ξ October 6th, 2007 | → 0 Comments | ∇ the boston phoenix |

Offensive defense
BY HARVEY A. SILVERGLATE & JOSHUA E. GEWOLB

Boston Phoenix
——————————————————————————–

Alden Baker may not be the kind of guy everyone would like to invite to dinner. In the early 1990s, the Medford businessman twice raped his chauffeur after unsuccessful nights of cruising for male lovers, a crime for which he received a six-to-10-year prison sentence in 1991. When he was arrested, authorities seized thousands of pornographic images and videos — some of it kiddie porn — from a computer bulletin board Baker maintained.

In the spring of 2001, Baker finished serving his time, but the government wants to keep him locked up as a sexually dangerous person. Chapter 123A of the Massachusetts General Laws provides for the indefinite detention (up to a life term) of ex-cons with mental abnormalities that predispose them to commit additional sex crimes. Baker is currently being held at the Nemansket Correctional Center, a state-run treatment facility for sexually dangerous persons, pending a civil-commitment trial in Middlesex County.

If a preliminary hearing held this spring is any indication, the government plans to contend at the trial that what makes Baker dangerous is his taste for sadomasochistic sex, including altogether voluntary and consensual S&M encounters. Middlesex County prosecutors are arguing that Baker’s S&M predilections indicate a mental abnormality that makes him likely to engage in sexual offenses if he is not committed. Baker plans to contest these charges vigorously, and the case will likely emerge as a test of the prosecutors’ claim that any sex that inflicts pain is dangerous. The trouble is that preparing this defense requires Baker to think about — and, worse, talk with his attorneys about — sex. And thinking about sex is what the authorities at Nemansket want to stop him from doing.

Baker plans to retain an expert witness on sadomasochistic sex to counter the government’s accusation that this practice, even when entirely consensual, is a form of sexual deviancy — which supports the state’s case for committing him. But when Baker’s attorney, Boston’s John G. Swomley, recently sent his client two books by potential witness Guy Baldwin, prison authorities refused to deliver them, citing a regulation prohibiting sexually explicit materials in the prison. Attorney-client privilege protects communications between inmates and their lawyers from the prying eyes of prison authorities, so Swomley filed a court motion asking that the prison authorities be ordered to turn over the books to Baker. In a breathtaking July 22 ruling, Superior Court justice Charles Grabau denied the motion on the grounds that books about sex ” might interfere with the institutional goals of rehabilitation. ” He added that the fact that Swomley knew, from his frequent work at Nemansket, that the packages he marked as confidential would be inspected ” precluded [him] from asserting attorney-client privilege. ” (Disclosure: the authors occasionally collaborate with Swomley, though not on the Baker case.)

The prison authorities are indeed allowed to open mail from attorneys in order to prevent smuggling of contraband (such as drugs) into the prison, but they must do so in front of the inmate to provide assurance that they do not read attorney-client privileged material. This does not, however, give them the right to decide which written materials to pass along to the inmate client. Furthermore, Grabau’s ruling ignores the obvious fact that to participate in their own defense, accused murderers need to read about murder, robbers about robbery, and sex offenders about sex. (The books, by the way, were not terribly racy and contained no illustrations.) In order to assess whether he wants to call Baldwin as a witness, Baker needs to read the expert’s writings — and determine for himself whether he thinks it contains scholarly analysis or perverse drivel. The expert, after all, could be examined on the witness stand about all his published works, so the client must be able to read what the expert has written. Keeping Baker, in the name of ” rehabilitation, ” from reading books by potential expert witnesses clearly denies him his Sixth Amendment right to work with his lawyer and participate in his defense.

Many prisons allow inmates to receive steamy writing, but not sexy pictures — a distinction that is somewhat arbitrary, but not irrational if one accepts the proposition that sexually explicit material for prisoners should be censored at all. The corrections code, however, allows the Nemansket superintendent to exclude any material that interferes with the ” rehabilitation ” process there, and he appears to have decided to ban erotic prose. It would be unlawful for a lawyer to smuggle erotic material to his client for its entertainment or prurient value, under cover of an ” attorney-client privilege ” seal.

Swomley, however, did no such thing. He is plotting a major attack on a key prong of the government’s case for Baker’s commitment — the notion that indulgence in consensual sadomasochistic sex in and of itself indicates dangerousness — and is duty-bound to consult with his client in doing so. His word that the materials marked as attorney-client privileged were necessary to Baker’s defense should have been enough. Once Judge Grabau examined the record, he immediately should have seen the importance and relevance of the materials to Baker’s defense and should have supported Swomley’s judgment. Ironically, the same day he denied the motion to allow Baker to receive the books, he granted a motion allowing Swomley and Baker to screen some of Baker’s homemade blue movies at Nemansket, also as part of the preparation for trial. Defending sex crimes, as Grabau obviously should know, requires talk of sex. The Sixth Amendment trumps prison regulations any day, notwithstanding prison authorities’ notions of what constitutes ” good ” versus ” bad ” sex.

Issue Date: August 1 - 8, 2002

 

Civil Commitment

Ξ October 6th, 2007 | → 0 Comments | ∇ the guide magazine |

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.

 

Stop Dr. Dildo

Ξ October 6th, 2007 | → 0 Comments | ∇ the guide magazine |

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.

 

Free Al Baker

Ξ October 6th, 2007 | → 0 Comments | ∇ the guide magazine |

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.

 

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Ξ October 6th, 2007 | → 1 Comments | ∇ Uncategorized |

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