A. Facts
Jake Baker, an undergraduate at the University of Michigan, in fall 1994 and early 1995, made and electronically disseminated words-only sexually explicit violent pornography in which women are abducted, raped, otherwise tortured, mutilated, and murdered. He posted the pornography to alt.sex.stories,the leading pornography bulletin board on Usenet with an estimated 270,000 users in the United States and worldwide, Marty Rimm, "Marketing Pornography on the Information Superhighway," 83 The Georgetown L. J. 1849, 1874 (1995), free and publicly accessible through the Internet, a network of computer networks.
On January 9, 1995, Baker posted pornography he made of amicus curiae Jane Doe, a classmate he found sexually attractive. Statement of Jake Baker, January 20, 1995. In this pornography, Jane Doe, identified by first and last name and detailed physical description, is seized in her apartment, bound, hung from a ceiling fan, raped, sodomized with a hot curling iron, cut and covered with gasoline, and burned to death for the sexual pleasure of Baker and a male friend. (Exh. 1A, Indictment, Feb. 14, 1995 ("Indictment")(App.A)(name removed)). Her reactions of terror, anguish, resistance, despair, and extreme pain are graphically detailed as sexually arousing. The title is her last name. Removed by University of Michigan authorities, this pornography was repeatedly re-posted by others.
An unfinished piece of pornography, titled Jane Doe's last name with the Japanese suffix "san," was written prior to the posted one, SAs Delmar Eugene Ward and Gregory Stejskal, FBI, February 13, 1995, File # 145B-DE-74756 (report of Baker interview, February 9, 1995), and advertised and likely sent to at least one correspondent. (A-72)(A-83).Firmly anchored in the reality of Baker's and Jane Doe's everyday environment, this pornography describes how Baker "will" abduct, terrorize, and sexually violate Jane Doe, identified by first, middle, and last name and address , after their Japanese class, beginning in its building and proceeding to an "unused access road off of 23," a highway on the east side of Ann Arbor, Michigan. (Exh.1B , Indictment (App.B)(name removed)).
Jake Baker made and posted more pornography to alt.sex.stories.1 In it, Baker -- "I" acts in Baker's materials2 -- stalks, terrifies, humiliates, sexually tortures and mutilates, and often kills his prey, all young women. He kidnaps, imprisons in a basement dungeon, and sexually tortures a highschool girl, "Jamie." She dies disappointingly soon. Then he rapes her.3 On the outskirts of Ypsilanti (a town near Ann Arbor), he drags a young jogger into the woods and rapes her with a tree branch ("*ENNGGHH* my darling little highschooler went, too abused to make human sounds") before urinating on her and shooting her so that she will bleed to death slowly. Going for a Walk. In Dancing, he forces "Amanda" to drive to a deserted parking lot where he burns her breast and genitals before raping her and breaking all her fingers. Then he cuts off her breasts and slashes her from her anus through her genitals. ("Where once she'd had two holes, now she had one.") Dancing.4
In Quickie, he and three friends sexually torture " Keko ," a Japanese woman ("Who cares what a Nip bit of flesh thinks?") he bought from a kidnapper. They beat and rape her, make visual pornography of her torture, and kill her.5 In My Sister Jill, he rapes and tortures his sister while their mother is away on business.6 He also reports masturbating to thoughts of raping his mother. "Candy" he forces to beg to be raped, tortures and humiliates, and leaves unconscious in a field, covered with " barf, shit, and cum." Second, Part I. "Mandy" is kidnapped from her dormitory room, tortured for days with household tools, forced to eat her own excrement, shown photographs he took while murdering her Asian roommate, and suffocated by throat rape: "I always like killing girls this way - suffocating on my dick." Mandy.
Jake Baker voluntarily released his e-mail correspondence to investigators. In it, a correspondent Jim requests Baker make pornography to order of his young neighbor Melissa, whom Jim stalks and once videotaped performing. (A-73) He sent Baker the tape. (A-80) Baker made pornography of Melissa being attacked in her home by a mailman, forced to perform, stripped, burned with scalding water, and raped: "Looking down at Melissa's face, there were new tears on her face. Tears of pain. I stroked that pretty face. So lovely. I deserved this." (App. C). Jim had written how erotic he found little Melissa's crying. (A-78).
Baker's pornography is uniformly graphic, sexually explicit, vivid, and concrete. It is predatory. It is sadistic. As Baker describes himself, "I can just visualize that bitch in severe pain. It makes me feel good." (A-12). It is misogynistic: "In any case, I just like hurting women." My First Slave, Part I. It is often racist: "...she died as one of my hammer blows pierced through her shattered skull and dug into her brain. I smiled at the metaphor. Asian people are supposed to be the brainy types, aren't they?" Mandy. Its purpose and effect is sexual arousal for himself and other consumers -- which happened.7 In a personal note before Dancing, Baker capsulizes his identification of himself with his pornography in a proposed signature epigraph: "Torture is foreplay, rape is romance, snuff is climax." (Exh. 3, Indictment).8
Through e-mail, Baker and defendant Arthur Gonda trade and examine published accounts of rape-murders by convicted serial criminals and plan to meet and act together -- as in Baker's posted Doe pornography -- on their intense sexual desire to torture and kill young women.
Gonda to Baker: ...you can control any bitch with rope and a gag...once tey are tieed up and struggling we could do anything we want to them...to any girl. The trick is to be very careful in planning. (A-10)
Baker to Gonda: I'm really looking forward to your coming down in a few weeks. My minds working over time making plans. (A-23)(emphasis added) See also (A-25)
Their plans, like Baker's pornography, are clear and concrete and anchored in reality. Early in December, they begin discussing selection of a properly arousing victim for them to sexually abuse.
Gonda to Baker: ...BTW how about your neighbour at home, youm may get a chance to see her...?...?(A-10)9.
Baker to Gonda: I didn't see her last time I was home. She might have moved. But she'd be a great catch. She's real pretty, with nice long legs, and a great girly face...I'd love to make her cry... (A-13).
Several communications between the two are titled X-mas Plans. (A-25) to (A-30). Baker and Gonda discussed specific places (dormitory bathroom at night (A-31)), times (Baker to Gonda: Alrighty then. If not next week, or in January, then definatly sometime in the Summer. Pickings are better then too. Although it's more crowded (A-44)), and means (ropes and gags (A-10); locker or bag, (A-31); acid (A-64)10) for abducting, torturing, and murdering young women and getting away with it. On December 9, Baker writes Gonda:
I can't wait to see you in person. I've been trying to think of secluded spots, but my area knowledge of Ann Arbor is mostly limited to the campus. I don't want any blood in my room, though I have come upon an excellent method to abduct a bitch---
I said before, my room is right across from the girl's bathroom. Wiat until late at night, grab her when she goes to unlock the door. Knock her unconscious, and put her into one of those portable lockers (forgot the word for it), or even a duffle bag. Then hurry her out to the car and take her away...(A-31)
Gonda responds in equally realistic terms about abduction methods:
I have a couple of comments about your method...:
I think that it is best to disconnect yourself as much as possible from the crime. The police, would surely come around asking questions...leaving with a huge bag may look very suspicious to anyone who might see you. Also, she might scream when you hit her, arousing the suspicion of the other people in the dorm...A dorm may be too populated for an abduction... also,it would be better to go for complete strangers...(A-32)(elipses in original)
Baker responds in terms of material likelihood of success.(A-36)
Later that same day, Gonda writes Baker in mounting sexual excitement at the prospect of what they are going to do:
...I can tell you that I am thinking more and more about 'doing' a girl. I can picture it so well...and I can think of no better use for their flesh. I HAVE to make a bitch suffer! (A-37)
On December 11, Baker shares with Gonda his intensifying sexual arousal and need to act on their plans:
I've been masturbating like the devil recently. Just thinking about it anymore doesn't do the trick...I need TO DO IT. (elipses and capitals in original) (A-41)
Gonda responds in terms of their intentions to act on what they have been masturbating to: "My feelings exactly! We have to get together...I will give you more details as soon as I find out my situation..." (elipses in original)(A-42).
In the posted Doe pornography, Baker and one male confederate assault a woman cooperatively, as he and Gonda planned to do. This pornography appears to have been written when the two were settling on time, place, method, and perfect victim. On January 9, the date the Doe pornography was posted, Gonda writes Baker:
Thanks for the stories Jake...I am buying a car this week. I am shopping around for it now, and I shaould have it on the road by this weekend hopefully. I will definitely come and see you when I will have the time...I am going to read the stories and masturbate now..."(A-77)
Baker also hears from Jim: Jake. Incredible story. I cann't wait to read the one you'll do about Melissa. Thank you so much for agreeing to do it.11 The tape will show you what she looks like.(A-78).
Jake Baker knew his activities were reported to authorities no later than January 13, 1995. This, with Gonda's investigation by Canadian authorities and Baker's arrest and detention, apparently interrupted the recording of these transmissions and aborted the portended acts.
The United States indicted Jake Baker and Arthur Gonda under 18 U.S.C. § 875(c), which prohibits interstate or foreign transmission of "any communication containing any threat to kidnap any person or any threat to injure the person of another." When Baker was arrested and detained on these charges, this Court affirmed the District Court's finding that "no conditions of release could assure the safety of others and of the community." U.S. v. Baker, Order (6th Cir.,March 7,1995).
On June 21, 1995, the District Court, Cohn, J., quashed the Superceding Indictment on grounds that the transmissions were protected speech under the First Amendment. U.S. v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995). The pornography of Jane Doe was termed "a story" which "graphically described the torture, rape, and murder of a woman who was given the name of a classmate of Baker's," 890 F. Supp. at 1379, but in reality was "only a rather savage and tasteless piece of fiction." 890 F. Supp. at 1390. The opinion was limited to the e-mail communications that "all express a sexual interest in violence against women and girls." 890 F. Supp. at 1379.
Each count of the Superceding Indictment, interrogated seriatim, was dismissed under language from the Second Circuit decision in U.S. v. Kelner, 534 F. 2d 1020, 1027 (2d Cir.), cert. denied, 429 U.S. 1022 (1976). The indicted statements were found to refer to an insufficiently specific class of targets, 890 F. Supp. at 1388, to merely state desires or predelictions rather than intentions to act, 890 F. Supp. at 1388, to lack immediacy and definiteness, to address an unlimited class of targets, 890 F. Supp. at 1389, and to express "needs" which "go unmet everyday" rather than "an unequivocal intention immediately to do anything." 890 F. Supp. at 1390. The charges were accordingly found facially insufficient as a matter of law for failing to allege "true 'threat'" under Watts v. U.S., 394 U.S. 705(1969) as rendered by Kelner. The government appealed.
This pornography (except that of "Melissa") was submitted by defendant's counsel to the District Court in Appendix to Brief in Support of Motion to Quash Indictment on April 25,1995 ("(A)or "Baker's Appendix"). All original spelling and other errors are retained here. RETURN
In a preface to the posted Doe pornography,Baker identifies himself with the "I" protagonist in it: "Prologue: The following story start in media res. The premise is that my friend Jerry and I have broken into the apartment of this girl,[Jane Doe],whom I know from call, and are proceeding to have a little fun with her. ('I' = the protagonist)." RETURN
...My slave, my pretty, tortured bitch, wasn't moving. None of that beautiful, mid-air-suspended twisting. I took her down. When I found she had to pulse, I wept. I hadn't wanted to kill her. Not yet. There was so much pain I could still inflict. It was then I realized that this would have to be my career. No one girl or woman could withstand all the pain I wanted to inflict. So I would have to do this again, many times. I smiled as I thought of that. But there was one thing I still had to do. My cock was bulging, and I had to relieve it. Removing the dildo and vibrator from the girl, I stuck my cock into her cunt. It was lubricated with blood. I humped her form until I cummed . Then I collapsed on top of her. It had been a satisfying evenings work. My First Slave, Part II. RETURN
The girl let out howls of agony as I moved the cigarette all over her tit, relighting it when it went out. She thrashed and hollered, but I held her steady. I moved the 'grette into contact with the sensitive skin under her breast. It burned prettily. RETURN
I watched as they did all they did, stretching out Keko's agony before she died. They put her feet in the floor stocks. They tied her writs and elbows together behind her, then winched them up so that she bent over in a painful position. Jimmy attached metal wrenches to her tits, and then used a lighter to heat them. The agony on her face was beautiful, and I snapped some pictures. Quickie. RETURN
Once I was done fucking her asshole, I shoved a beer bottle into it and made her walk around all day with it sticking in her. I made her do sit ups and push ups with this ugly green glass bottle stuck up her shitter, and I took pictures of it. Ocasionally , I'd yank the bottle around in her asshole, just to elicit a reaction. She reacted beautifully. My Sister Jill. RETURN
"For those of you who do, I write this to turn you on." Personal note to Going for a Walk; (A-66) (Gonda reports "had a great orgasm" re "Jamie"); (A-73) (Jim reports "I must have jacked off 5 times already thinking and rereading about the young girl in your recent story"); (A-98) Edward reports Baker's account "has had me hard in the pants daily, and releasing on a very regular basis"). See also (A-81) and (A-87). RETURN
"Hey, I thought of this for my .sig the other day, but unfortunatly I do have other business on the net." Exh. 3, Indictment. This preface is absent in Baker's Appendix . RETURN
The materials of record cannot be all the contacts between Baker and Gonda. This is the first mention of this individual, but Baker has to have mentioned her previously for Gonda to know she exists. RETURN
Gonda to Baker: ...it occured to me, that it would be absolutely beautiful to torture a bitch after giving her about 4 hits of acid without her knowledge...in fact this may even be an easy way to abduct a girl...(A-64). RETURN
The e-mail does not contain this agreement, suggesting that other contact occurred. RETURN
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