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at what price survival

AFFIDAVIT OF JAMES KOMMIKER

October 6th, 2007

AUG—18—2004 04:00

COMMONWEALTH OF MASSACHUSETTS
SEX OFFENDER REGISTRY BOARD
CASE NO. 22306

——————————-
ALDEN BAKER,
Petitioner
V.
SEX OFFENDER REGISTRY BOARD,
Respondent
————————–

AFFIDAVIT OF JAMES KOMMIKER
I, James Kommiker, state that the following is true to the best of my belief and knowledge:

1. I was the complainant in Mr. Baker’s 1991 criminal trial involving charges of rape. At the time, I worked for Mr. Baker but we were also involved in a sexual relationship. Mr. Baker also practiced sado-masochistic activities, commonly referred to as “S & M”. At the time, I wanted nothing to do with that lifestyle; indeed, I feared it. Nonetheless, I still worked with him voluntarily and engaged in consensual sexual relations with him.

2. At one point, Mr. Baker struck me during an altercation. I went to the police and reported the incident. At this time, the police indicated to me that they suspected Mr. Baker had committed a murder. Based on this information, I began to fear for my own safety.

3. I agreed to testify against Mr. Baker at his criminal trial because I feared for my own personal safety based on what the police told me and based on my lack of understanding as to the voluntary nature of S & M.

4. Looking back, I know that Mr. Baker did not forcibly rape me. My testimony to the contrary was the product of several factors. I felt uncomfortable about Mr. Baker’s S & M lifestyle; he was also a strict employer, which was intimidating; and I believed the police when they said that Mr. Baker wanted to kill me.

5. After years of reflection and learning about the truth, I testified at Mr. Baker’s sexually dangerous person trial in March of 2003 that I did not feel Mr. Baker was a sexually dangerous person and that I thought he should be released.

Signed under the pains and penalties of perjury this 18th day August, 2004

James Kommiker

Notarized:
Danielle Andreasi
Notary Public-Massachusetts
Norfolk County

Narrow Reprieve

October 6th, 2007

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.

Baker ruled not dangerous, released

October 6th, 2007

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 lkiritsy@baywindows.com.

Cowardly Judges

October 6th, 2007

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.

DA Neednt Be Concerned

October 6th, 2007

Letters
Massachusetts Lawyers Weekly.
March 10, 2003

To the Editor:
District Attorney Martha Coakley need not be too concerned that Carl Takei’s and my piece on the civil liberties implications of her office’s Sexually Dangerous Persons case against S&M practitioner Alden Baker appeared the morning his jury trial commenced (”‘Commonwealth v. Baker’ Poses Novel Question,” Feb. 24). Judge [Ralph D.] Gants immediately queried the jurors to make sure that none of them had read the piece, and, sure enough (and quite predictably, I might add), none of them had read it nor, in fact, read Massachusetts Lawyers Weekly at all.

Had the piece appeared in a general interest newspaper prior to the judge’s instructing jurors not to read about the case in the press, Coakley’s concerns about juror taint might be more realistic. In fact, I submitted the piece to Lawyers Weekly not to taint the jury pool, but rather to educate journalists and convince them of the need to cover this important civil liberties case right in their own back yard. I actually wish that Lawyers Weekly were read by more journalists who cover the courts but who, alas, often do so in blissful ignorance of what is really happening.

Ignorance remains dubious bliss when it comes to the public’s and the media’s lack of knowledge of, or perhaps lack of interest in what is done to civil liberties in the people’s name.

Harvey A. Silverglate

Boston

DA Responds To Advocacy

October 6th, 2007

Letters
Massachusetts Lawyers Weekly.
March 03, 2003

To the Editor:
I was surprised to see Lawyers Weekly publish, as a Sexually Dangerous Persons (SDP) jury trial is being impaneled in Superior Court, a lengthy advocacy piece portraying the respondent as a hapless victim of commonwealth excesses (”‘Commonwealth v. Baker’ Poses Novel Question,” Feb. 24). Surely Lawyers Weekly published this article with full knowledge of the procedural stance of the case: The co-author is clearly identified as a paralegal employed by defense counsel, and the article states up front that “trial commences this week in Middlesex Superior Court.”

While the piece poses as a legal analysis of a novel question of law, it is actually the “defense” strategy of Alden Baker. References to discovery reports and evaluations, which may or may not be admissible at trial, are referenced liberally. The authors casually dissemble and dismiss a rape conviction, the multiple levels of procedural safeguards available in SDP proceedings, and then allege that Baker is on trial for his “lifestyle.”

I respect Harvey Silverglate, and his support of civil liberties, but it is apparent in this article that he does not let the facts get in the way of his “theory.”

As this letter is written, Massachusetts prosecutors in the 11 districts are preparing SDP cases for trial. If commonwealth prosecutors, as respondent’s counsel has done in this case, sent you our opening statements for publication, containing every inculpatory detail, to coincide nicely with the date of jury selection, you would not (and you should not) print them. Why are the rules different for the defense bar?

Martha Coakley

Cambridge

The writer is district attorney of Middlesex County.

Comm v Baker Poses Novel Question

October 6th, 2007

Harvey A. Silverglate and Carl Takei
Massachusetts Lawyers Weekly.
February 24, 2003

If a man engages in kinky sex with consenting adult partners, should the district attorney’s judgment that such behavior is “abnormal” and “sexually dangerous” be grounds for the commonwealth, in a civil jury trial, to incarcerate him for life?

This is the novel question posed by Commonwealth v. Baker.

It is also a profound civil liberties question that will help determine whether the 40-year trend toward personal and sexual autonomy and privacy — begun when the U.S. Supreme Court invalidated Connecticut’s (and therefore our commonwealth’s) antiquated criminal laws against the distribution of contraceptives to married couples — will come to an abrupt halt.

This question may well be answered in a civil “Sexually Dangerous Persons” (SDP) trial that commences this week in Middlesex Superior Court before Judge Ralph D. Gants and a jury.

The trial is governed by G.L. c. 123A, which calls for the involuntary detention of SDPs — that is, people who suffer from a “mental abnormality” that makes them likely to commit future sex offenses — by the Department of Correction, for one day to life.

As a practical matter, the period of incarceration is more likely to be closer to life than to a day, according to Alden Baker Jr.’s lawyer, Boston’s John G. Swomley, who has handled more SDP cases than almost any other defense lawyer in Massachusetts.

The Middlesex DA’s Office moved to civilly commit Baker in mid-2001, arguing that his interest in S&M sex activities, even with consenting adults, constitutes a dangerous mental abnormality within the meaning of the SDP commitment statute.

Baker’s case represents the latest frontier in the war for sexual liberation and personal autonomy that began decades ago in both Massachusetts and in the nation: the right of consenting adult men and women to gain sexual pleasure however and with whomever they choose, as long as it is consensual, essentially safe and done in private.

The Baker defense team will argue that what consenting adults do with one another in their bedrooms — whether homosexual or heterosexual, with whips or without — should be their decision and not that of the state, and that people with tastes considered odd or even frightening by most should not thereby be deemed dangerous.

S&M In The Context Of Sexual Liberation

The U.S. Supreme Court first touched upon private sexual decisions when, in the landmark case of Griswold v. Connecticut, 381 U.S. 479 (1965), it invalidated Connecticut’s anti-contraception statute, citing the privacy rights of married couples who engaged in the practice of “family planning” — now rather commonplace, but back then a crime.

In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Supreme Court expanded that right beyond the marital bedroom, striking down Massachusetts’ anti-contraception statute on equal protection grounds because it treated unmarried couples differently than married couples.

Although the Supreme Court refused to take the next logical step — to constitutionalize a right of gays to engage in private consensual sodomy in Bowers v. Hardwick, 478 U.S. 186 (1986) — the Supreme Judicial Court did so in Commonwealth v. Balthazar, 366 Mass. 298 (1974), based upon the Massachusetts Declaration of Rights.

Now, however, the counter-assault on sexual autonomy appears to have begun, fueled in part by the clinical judgments of psychologists who condemn certain consensual sexual practices as “deviant.”

In the Baker case, the commonwealth has gathered expert testimony to support the proposition that S&M sex — behavior that makes some people a bit nauseous or a lot uneasy — is actually abnormal and dangerous within the meaning of the SDP statute. A test case could well be in the making.

The outcome does not appear to be entirely clear or predictable. Under Chapter 123A, consensual but “abnormal” sexual behaviors can with surprising ease arguably become grounds for involuntary detention.

Whether this use of the statute will withstand constitutional scrutiny, under either the state or federal constitutions, remains to be seen.

Using culture-bound psychological judgments to justify legal enforcement of sexual norms is, of course, not a new tactic. In the 1950s and 1960s, the state routinely institutionalized men for engaging in consensual gay sex.

However, in 1973, the American Psychological Association removed homosexuality from its DSM classification of mental disorders, closing the door on that repressive practice.

Presumably, this step by the psychology profession also made it easier for the SJC to decide Balthazar in favor of the defendant.

Today, S&M enthusiasts are stuck where gays once were, straddling the legal and clinical fault lines between sexual freedom and sexual authoritarianism. Even when they engage in S&M play exclusively with consenting adult partners, S&M enthusiasts are frequently diagnosed as suffering from the paraphiliac disorders “sexual sadism” and “sexual masochism.”

Yet within the S&M community, boundaries can actually be clearer than in most heterosexual, non-S&M sexual encounters. Partners agree beforehand who will be the “top” (dominant) and the “bottom” (submissive) partner, and often decide on special “safe words” that can be used to end the encounter if things appear to be going too far.

When pain is imposed, it is done within mutually accepted limits and for purposes of mutual gratification. Law enforcement officials generally ignore these distinctions, assuming that nobody could ever truly consent to pain (however temporary) or find it sexually exciting.

This leads to incidents like the “Spanner” case in Britain, in which British authorities classified S&M play as “assault” even though there was no permanent injury, and the “bottoms” had consented to the temporary injury that took place, and raids like Massachusetts’ “Paddleboro” case, in which a dominatrix’s wooden spoon formed the basis for “assault and battery with a dangerous weapon” charges.

The Spanner case was appealed to the House of Lords and then to the European Court of Human Rights, which in 1997 ruled in favor of the government (Laskey, Jaggard and Brown v. United Kingdom, Reports 1997-I).

Meanwhile, the Paddleboro case, heard in 2001 in the Attleboro District Court, never actually confronted the issues surrounding consensual S&M. After the court suppressed all statements and evidence arising from the police’s illegal entry and search, ADA Roger Ferris dropped all of the S&M-related charges.

Alden Baker’s case may therefore be the first judicial test of whether the battle over consensual S&M will trigger a new erosion of sexual autonomy in Massachusetts.

The Paddleboro case did not demonstrate that S&M sex could be prosecuted as criminal assault and battery, but the Baker case may test the proposition that such behavior can be the basis for a civil commitment for up to life.

Who Is Alden Baker?

As Baker explained to his lawyers, as a young man growing up in the pre-Stonewall era, he reacted to virulent homophobia by lashing out.

Once an Eagle Scout and an honor student, his grades dropped as he struggled to come to terms with his nascent homosexual identity. A turbulent time followed, in which he dropped out of high school and spent his time stealing cars, as well as accumulating a litany of petty theft convictions on his juvenile record.

By 1990, as he approached middle age, Baker finally managed to build both a successful business and a social situation with which he was comfortable. The president of a successful trucking and management-side labor relations business, Baker spent weekends hitting the gay bar scene in Boston, seeking out men who shared his sexual interests.

An active member of Boston’s gay S&M (”leather”) community, Baker also ran a computer bulletin board service (BBS), a precursor to Internet websites, that featured discussion areas, file trading and chat rooms focused on gay issues.

Following the practices of others in the S&M community, Baker had set up a “play room” in his house, outfitted with a jaw-dropping collection of sex toys and bondage gear. There, Baker and his lovers would stage sexual submission/dominance routines — acts of willing compliance or feigned resistance.

Then a dispute involving Baker’s on-again, off-again sexual relationship with his limousine driver showed Baker how fragile his prosperity was. Baker and the driver had sex several times. Two of those times, the driver said, had been coerced, yet he had continued to pay social visits to Baker to, among other things, give him Christmas presents. But the driver nonetheless went to the police and pressed charges.

On Feb. 28, 1991, the Medford police obtained a search warrant and entered Baker’s house. They seized the computer equipment used to host his BBS and then proceeded downstairs to Baker’s play room.

Det. John Brady, the officer leading the search, described it as a “torture room.” Another officer accompanying Brady reportedly exclaimed during the search that the place was a “f—-ing faggot palace.”

At the rape trial, prosecutors used videotapes of Baker’s consensual S&M play (seized during the search of Baker’s house) and Det. Brady’s descriptions to create a negative impression of Baker, even though all of the lovers pictured in the tapes testified that the activities had been consensual.

The prosecution also claimed, using quotes lifted from the decade-old written evaluations of his high school teachers, that the 29-year old driver was “borderline retarded” and therefore could not have been anything but an unwilling victim in the sexual encounters in question.

Baker was convicted of raping the driver and sentenced to six to 10 years in prison.

On top of this, subsequent searches of the seized computers revealed that some users of Baker’s BBS had used the site to trade explicit photographs of underage teenagers.

The child pornography statutes operate on a type of strict liability/possession basis, meaning that Baker was criminally liable for his users’ activities. Any such photos stored on his servers, even if he had never viewed the material, could lead to a near-automatic conviction.

The situation was further complicated for Baker by the use by the prosecution of a suggestive (but not obscene) photograph, unearthed by prosecutors, of Baker and a young man whom a state-retained photo analyst claimed to have been under the 18-year-old legal cut-off, a proposition later contested by Baker.

Already in prison, Baker was offered a 43-month concurrent sentence if he pled guilty to 82 charges relating to the BBS file trading and one charge relating to the photo with the unidentified young man.

Realizing that he would be held responsible for his users’ activities, and advised by legal counsel that it wasn’t worth it to challenge the state photo analyst on something that wouldn’t even affect the total amount of time he spent in prison, Baker chose to accept the deal.

He would later regret this decision.

How The Mass. CivilCommitment System Works

Chapter 123A, which governs the civil commitment of “sexually dangerous persons,” was enacted in 1999, a last-minute addition to legislation creating a sex offender registration system for Massachusetts.

Although the old sex offender civil commitment statute, enacted more than half a century ago, had been repealed in 1990 because of its ineffectiveness in reducing recidivism, the new statute is not very different from the old one.

Part of the reason for this re-enactment was that in 1999, such statutes were becoming increasingly popular, having recently obtained the imprimatur of the U.S. Supreme Court.

In Kansas v. Hendricks, 521 U.S. 346 (1997), the court affirmed, by a 5-4 vote, the constitutionality of Kansas’ “sexually dangerous predator” statute. Writing for the majority, Justice Clarence Thomas declared that the involuntary civil commitment of “sexually dangerous predators” is “nonpunitive” in intent and therefore does not implicate constitutional protections against double jeopardy and ex post-facto punishment.

The standard for “sexual dangerousness” in the new Massachusetts statute uses language similar to that of the statute in Hendricks. Under G.L. c. 123A, the key element of being a “sexually dangerous person” is that one “suffers from a mental abnormality or personality disorder that makes the person likely to engage in sexual offenses if not confined to a secure facility.” (G.L. c. 123A, Sect. 1).

In Baker’s case, state experts have argued that his desire to engage in S&M play with consenting adults is a sign of dangerous mental abnormality. This supposedly scientific claim goes to the heart of the effort to imprison Baker for life.

The process begins when the DA, toward the end of an inmate’s sentence, petitions the court to civilly commit that inmate. A probable cause hearing follows, in which a judge hears psychological testimony and decides whether the petition should proceed further.

If the DA is successful at the probable cause stage, then the defendant is transferred to the temporary custody of the Nemansket Correctional Center. There, the defendant awaits a trial by jury.

If the jury returns a verdict of “sexually dangerous,” the defendant is returned indefinitely to Nemansket, where he is held until the Department of Correction decides it has successfully neutralized the “mental abnormality” that led to the determination of dangerousness.

The DOC will not recommend release of its detainees unless they participate in intensive psychological reprogramming — and even then the facility’s operators usually declare their detainees unfit for release.

Already, Baker has refused to participate in treatment to “cure” him of his “abnormal” sexual preferences, arguing that his interest in S&M is not harmful to others. If he loses his trial, however, these refusals will likely be used to designate him as incorrigible, making it unlikely that he would ever be released.

One state-retained psychological examiner, Dr. Stephen DeLisi, has already made this argument in his report: “[T]here is no data to indicate he has any interest in addressing, in a therapeutic way, his sexual deviancy, or that he even sees himself as having a sexual deviancy. It is likely, therefore, that his antisocial lifestyle and deviant sexual interests and behaviors will continue if he is released from custody.”

What Do The Experts Say?

The first person to evaluate Baker was Dr. Ira Silverman, a state-retained psychologist whose diagnosis formed the basis for the commonwealth’s initial determination of Baker’s alleged dangerousness at the probable cause hearing in March-April 2002.

At the hearing, Dr. Silverman testified that if an individual derives his “primary or exclusive source of sexual pleasure” from encounters involving sex toys such as butt plugs, whips and handcuffs, that is per se a sign of sexual deviancy.

In this seemingly Victorian worldview, even explicit consent to the use of such toys is no excuse. Dr. Silverman asserted that the use of bondage gear is “clinically deviant” regardless of whether or not one’s partner consents.

Further, Dr. Silverman found dressing up in leather, chains, jackboots and a leather hat to cruise the city’s gay bars to be suspect. While Dr. Silverman admitted that such behavior is “not illegal,” he opined: “[I]f this is how he derived his primary or exclusive source of sexual pleasure, then I think there would be a question there [as to whether such behavior is deviant].”

After Dr. Silverman’s evaluation, Dr. Daniel Kriegman, an independent forensic psychologist retained by Swomley, conducted his own evaluation of Baker. In this report, Kriegman made pointed criticisms of Silverman’s report, charging that Silverman selectively ignored crucial portions of the DSM-IV’s definitions of “sexual sadism” and “antisocial personality disorder” in order to arrive at his diagnoses.

Despite these deficiencies, Superior Court Judge Jane S. Haggerty found sufficient grounds to bring the case to trial.

For the trial, the DA’s Office ordered another round of evaluations, this time from Drs. Niklos Tomich and Stephen DeLisi.

Meanwhile, the defense retained three additional experts: forensic psychologist Dr. Leonard Bard; Dr. Fred Berlin, director and co-founder of the National Institute for the Study, Prevention and Treatment of Sexual Trauma at The Johns Hopkins University School of Medicine; and Dr. Charles Moser, a specialist in sadomasochism who has made more than 100 presentations and published 12 scientific articles and book chapters on the subject. All four defense experts expect to be testifying.

The defense experts disagree over whether or not Baker’s interest in S&M is abnormal, which reflects a fundamental division within the psychological profession as a whole.

Dr. Moser, who asserts it is not abnormal, is arguably the foremost critic of the pathologization of unusual but consensual sexual practices like S&M; he is pushing the profession to focus less on particular forms of desire and more on how both common and uncommon desires can create pathological situations.

Meanwhile, Dr. Berlin believes the existing conceptual framework is sound, but draws the line between dangerous and non-dangerous manifestations of abnormal sexual desires.

But despite these differences, Moser and Berlin both agree on the most important point: Baker’s interest in S&M, whether abnormal or not, fails to pose a danger to society.

Much of the expert testimony will present the ancillary question of whether this area of the law has been infected with what is known as “junk science” — members of the medical and psychiatric communities who proffer their personal tastes and preferences as “normal” and are too quick to label very different tastes as “abnormal” and therefore “dangerous.”

There is, however, a larger theme to this case. It can be seen as the latest frontier in the battle for sexual liberation. Does our society value individual freedoms enough that we can accept the oddities of consensual S&M activities? Or are we now living in an era when the “sex police” are staging a comeback?

The battle for consensual gay sex has been fairly successful, but it re-ignites now and again, especially in the public schools.

The campaign against “deviant” S&M sex seems to be another battle in that larger war theatre, enhanced, as it is, with the “junk science” — personal preferences disguised as scientific truths — that is all too common when members of the “mental health” establishment get to the witness stand.

On Feb. 24, the Baker trial opens the next phase of this conflict.

Harvey A. Silverglate is a partner in the Boston firm of Silverglate & Good, co-author (with Alan Charles Kors) of “The Shadow University: The Betrayal of Liberty on America’s Campuses,” and co-director of The Foundation for Individual Rights in Education. Carl Takei, a graduate of Brown University, was on the staff of the Brown Daily Herald and is currently a paralegal at Boston’s Swomley & Associates.

Inmate’s release may hinge on interest in S&M

October 6th, 2007

Issue Date: 12/19/2002, Posted On: 12/19/2002

Inmate’s release may hinge on interest in S&M

Laura Kiritsy – Bay Windows

A 53 year-old gay man will appear in a Middlesex County court Jan. 9 to fight indefinite confinement in a state correctional facility because authorities say his taste for consensual sadomasochistic (S&M) sex play in part qualifies him as a “sexually dangerous person.”

Alden Baker, Jr. is currently being held at the Nemansket Correctional Center in Bridgewater, after completing a 10-year sentence 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.”

After reviewing Baker’s court and prison records — Baker declined to participate in the state’s pyschological evaluation — Dr. Ira Silverman, the state’s forensic psychologist and sexually dangerous person 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, say Baker’s defenders, is crucial to his case. They contend 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 clinician at the Massachusetts Treatment Center for the Sexually Dangerous in Bridgewater, evaluated Baker last February. 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.

“The Commonwealth’s effort to classify consensual S&M play as sexually dangerous is quackery,” said Baker’s attorney John G. Swomley, in a Dec. 9 statement. “Persecuting Mr. Baker for his sexual interests is just a variation on the 1950’s practice of institutionalizing gays for their alleged `deviancy.’”

Swomley will call a handful of sexologists and mental health professionals who will testify that the state’s contention that Baker’s S&M proclivities are a mental abnormality are clinically and medically unsound. Among them are 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.

Under the state’s 1999 sexually dangerous person statute, if Baker is determined by the court to be sexually dangerous, he will be civilly committed to a Department of Correction treatment facility for a sentence of one day to life. His release would be contingent upon completing sex offender treatment and a clinical determination that he no longer poses a threat to society.

Laura Kiritsy is a staff writer at Bay Windows. Her e-mail address is lkiritsy@baywindows.com.

Criminal Reads

October 6th, 2007

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.”

re: Editor’s letter to the editor

October 6th, 2007

—–Original Message—–
From: Harvey A. Silverglate
Sent: Friday, August 23, 2002 4:17 PM
To: ‘Vollmar, Susan Ryan’
Subject: French Wall’s letter to the editor

Susan,

French Wall has been kind enough to send me a copy of his letter-to-the-editor sent to the Phoenix earlier this month, responding to (and, more precisely, enlarging upon) the TJI piece done by Josh Gewolb and me on a couple of aspects of the current legal proceedings against Alden Baker in Middlesex County. Wall’s letter does supply some needed background to the earlier prosecution against Baker that resulted in his conviction. This is background that I agree is essential in understanding the full implications of the current efforts by the Middlesex D.A. to keep Baker in prison for life.

However, it was considerably beyond the scope of the TJI piece. I do think that to the extent the paper publishes all or part of Wall’s letter, it will add important information to the public’s knowledge of this outrageous campaign against Baker.

When, later, I write more about the legal proceedings to lock Baker up for life as a “sexually dangerous” person, I plan to talk more about the unfairness of the earlier criminal proceedings against him.

In short, I commend French Wall’s letter to you.

Harvey