II. THREATS OF SEXUAL VIOLENCE CAN BE TRUE THREATS
Threats of sexual violence, survivor experience and scholarship reveal,are as potentially real as any other threats of violence--perhaps moreso where the anticipated reward is sexual pleasure, a powerful motivator. Research establishes that men who enjoy sexually violent pornography are at particular risk of acting in a sexually violent manner toward women. When found actively planning to effectuate sexually violent acts, the only reasonable conclusion, apparent to an ordinary person as well as to their targets, is that such individuals pose a hazard of harm to their targets, certainly a risk sufficient to be determined by a jury. The failure of the District Court below to assess this risk properly was subjective, uninformed, and clearly erroneous.
A. The Materials At Bar Threaten Sexual Violence Against Women.
Whether threats are intended as "true 'threats'" in the Sixth Circuit is measured by inquiring whether a communication is objectively threatening on the evidence taken in its totality. U.S. v. DeAndino, 958 F.2d 146,148 (6th Cir.), cert. denied,505 U.S. 1206 (1992) (threat is a general intent crime); Lincoln, 462 F.2d at 1368. But cf. U.S. v. Twine, 853 F.2d 676 (9th Cir. 1988) (specific intent required in Ninth Circuit for § 875(c) prosecutions). Reports of survivors of sexual assault and an extensive scholarly literature strongly support the reasonableness of the conclusion that women, including individual women, are targeted for sexual violence by transmissions like those in this case. It is reasonable for anyone, including the ordinary person, to foresee that, taken together, the transmissions express a serious intent to kidnap and inflict severe bodily harm.
1. Scholarly Research and Survivor Reports Support the Reasonable Apprehension that the Transmissions Will Be Acted Upon According to their Tenor.
Threats are prospective: they predict possible injury. The injury of threats of violence, from which Congress is entitled to protect society, R.A.V. v. City of St. Paul, 505 U.S. at 388, is not the acts that the threats say will be done, but the verbal projection of those acts. This is the reason the government need not show that the threatened acts will occur or demonstrate that the defendant specifically or subjectively intended to, or could, carry them out. DeAndino, 958 F.2d, at 149; U. S. v. Darby, 37 F.3d 1059, 1064 n. 3 (4th Cir.1994). If the concern were with the threatened events, government should wait and see if they happen. But the point of a law against threats is to allow government to step in before they happen.
Under the First Amendment, as well as for statutory purposes, U.S. v. Glover, 846 F.2d 339,343-44 (6th Cir.1988) (saying the two are the same), a legally punishable threat is one that has "a reasonable tendency to create apprehension that its originator will act in accordance with its tenor." U.S. v. Cox, 957 F.2d 264,266 (6th Cir. 1992). See Glover, 846 F.2d at 343 (whether a reasonable person would foresee a statement as "a serious expression of an intention to inflict bodily harm upon" or kidnap); U. S. v. Maisonet, 484 F.2d 1356, 1358 (4th Cir. 1973) (threat is true threat and for jury if evidence shows that "an ordinary, reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury"); Melugin, 38 F.3d at 1484; Khorrami, 895 F.2d at 1192.
Amicus NCASA has extensive experience with direct reports of sexual assault by survivors. Combined with its expertise on the scholarly research on sexual assault, including studies of victims, sex offenders, and populations of normal men (termed "non-clinical samples"), this supports the conclusion that the materials at bar do create a reasonable apprehension that criminal acts will occur in accordance with their tenor.
Women who have been sexually assaulted often report to sexual assault service providers, the members of NCASA, that the men who assault them mention or refer to pornography as part of the sexual assault. Survivors report that when men they know make or use pornography, sexual assaults on them increase, assaults that often mimic the pornography exactly. Some survivors report pornography is present during their rapes, used by the perpetrator(s) for direction. Survivors increasingly report pornography being made of their sexual assaults. With visual technology becoming increasingly available, more visual pornography is reported being made by men who formerly were only consumers of it, for which purpose the acts in it must be done to real women, some of whom report the assaults. Scholars have documented these effects. Diana E.H. Russell, Sexual Exploitation 123-132 (Sage,1984); Mimi H. Silbert & Ayala M. Pines, "Pornography and Sexual Abuse of Women," 10 Sex Roles 861 (1984) (role of pornography in rape of prostituted women), Evelyn Sommers & James Check, "An Empirical Investigation of the Role of Pornography in the Verbal and Physical Abuse of Women," 2 Violence and Victims 189 (1987)(role of pornography in battering of women); Public Hearings on Ordinances to Add Pornography as Discrimination Against Women, Gov't. Ops. Committee, Minneapolis City Council (December 12 and 13, 1983) (public hearings on pornography's harms to women).
Research on sexual aggression has found that a substantial percentage of college men and men from the general population report they might "force sex" and/or "rape a woman" if they believe they would not be caught. Neil M. Malamuth, "Rape Proclivity Among Males," 37 J. of Social Issues 138 (1981); Neil M. Malamuth and Karol E. Dean, "Attraction to Sexual Aggression," in A. Parrot & L. Bechofer (eds), Acquaintence Rape: The Hidden Crime (1991). Many studies show approximately one-third of subjects report some degree of such likelihood, which also correlates substantially with some characteristics that predict sexually aggressive behavior, such as sex callousness, rape myth acceptance, and hostility to women. Neil M. Malamuth, "A Multidimensional Approach to Sexual Aggression: Combining Measures of Past Behavior and Present Likelihood," in R. Prentky & V. Quinsey (eds), Human Sexual Aggression: Current Perspectives (1988). In other words, men who are more likely to say they would force sex on a woman if they would not be caught are also men who otherwise show characteristics that make them more likely to rape.
This research tends to support the statement of Baker's correspondent Jim, concerning his desire to sexually aggress, that "If truth were told, most of us would follow through if assured we would not be caught." (A-92) Jake Baker places himself within the population this research identifies when he states, in the context of planning abduction and discussing real rape-murders, "...the thought of playing with a girl has become so heavy in my mind...Sometimes, I'll see a pretty one alone in the quad and think "Go on Jake. it'd be so easy." But the fear of getting caught always stays my hand." (A-36). When a social environment is created, such as the Internet, in which it becomes acceptable to share materials like the pornography of record, getting caught may appear less likely, perception of social disapprobation is reduced, controls disinhibited, and the possibility of aggressive acts correspondingly increased. Diana E.H. Russell, "Pornography and Rape: A Causal Model," 9 Political Psychology 41 (1988).
Although not all men who imagine sexual aggression act on it, most men who are sexually aggressive fantasize about doing it. Violent sexual fantasies are a well-known risk factor for rape. Clinical research on incarcerated rapists shows that one of the few features that distinguishes them from the rest of the male population is their predominance of "fantasies involving sexual aggression." W.D. Pithers, D.M. Kashima, G.F. Cumming, L.S. Beal & M.M. Buell, "Relapse Prevention of Sexual Aggression," in Prentsky, supra. at 249. In-depth research on a population of incarcerated serial sadistic killers comes to the same conclusion. A "striking concordance" in each case was found between the killer's sexual fantasy life and their offenses, with type of force used. M.J. MacCulloch, P.R. Snowden, P.J.W. Wood and H.E. Mills, "Sadistic Fantasy, Sadistic Behaviour and Offending," 143 Brit. J. Psychiat. ("MacCulloch, et al,") 20, 23-25 (1983). All subjects "described recurrent sadistic fantasies, linked to sexual arousal, which included control over a victim." Id. at 23. "[T]he sadistic situations had been rehearsed many times in fantasy..." Id.
Given that those who act in sexually aggressive ways fantasize about it, but some who have such fantasies do not act on them, it is important to identify which individuals who have such fantasies will act on them and which will not. Non-clinical investigations have established that coercive sexual fantasies indicate attraction to sexual aggression which, if combined with certain other factors, is likely to result in sexually aggressive acts. In a non-clinical sample, a clear relationship has been found between sexual arousal to rape stimuli and past reported aggressive sexual behavior, Neil M. Malamuth, "Predictors of Naturalistic Sexual Aggression," 50 J. of Personality and Social Psychology 953 (1986), and with likelihood of future aggression. Neil M. Malamuth, James Check, and James Briere, "Sexual Arousal in Response to Aggression: Ideological, Aggressive, and Sexual Correlates," 50 J. of Personality and Social Psychology, 330 (1986). The profile of men who imagine sexual aggression has been found to be similar to the profile of men who actually commit such acts. Karol E. Dean and Neil M. Malamuth, "Characteristics of Men Who Aggress Sexually and of Men Who Imagine Aggressing: Risk and Moderating Variables," -- J. of Personality and Social Psychology--(forthcoming, 1996) ("Dean and Malamuth (forthcoming)"). The data show that fantasied sexual aggression is far from an isolated response without real-world correlates.14
In predicting which individual men who use pornography will force sex, research has established that pornography consumers who combine hostile masculinity with impersonal sexuality are highly likely to sexually aggress against women. Neil M. Malamuth, R. Sockloskie, & M. Koss, "Assessing the Role of Pornography Within an Integrative Model of Sexual Aggression," Paper presented at the Annual Meeting of the American Psychological Association, (San Francisco, CA: August 1991). Hostile masculinity is a measure that combines hostility to women and dominance as a motive for sex. Impersonal sexuality is a constellation of characteristics that often begins with violence and abuse in family background followed by adolescent delinquency. If an individual, high on these two measures, is also a consumer of pornography, he is at high risk for engaging in sexual aggression against women. Id. See also Robert R. Hazelwood and Janet Warren, "The Serial Rapist: His Characteristics and Victims," FBI Law Enforcement Bulletin, (Part I, January 1989) (Part II, February 1989)(similar characteristics found in convicted serial rapists); J. Briere, S. Corne, M. Runtz, and N. Malamuth, "The Rape Arousal Inventory: Predicting Actual and Potential Sexual Aggression in a University Population," Paper presented at the Annual Meeting of the American Psychological Association (Toronto, 1984)(use of pornographic books found related to actual or self-reported likelihood of sexual aggression in college men).
Since all research on exposure to pornography shows greater negative effects when the pornography is violent as well as sexually explicit, Attorney General's Commission on Pornography, Final Report 39-40,246-290(Rutledge Hill Press, 1986), it is predictable that a man hostile to women and impersonal about sex, exposed to sexually violent pornography, would pose an even greater risk of injuring women.
Sensitivity to others, including a capacity for empathy, has been found to be an important factor mediating between sexually violent fantasies and sexually violent acts. Dean and Malamuth (forthcoming). Rapists are less sensitive to others than non-rapists, and low empathy for others is associated with high arousal to rape fantasies. Low sensitivity to others and little empathy thus make it more likely that an individual who has aggressive sexual fantasies will act them out in violence against women. Id. This finding is supported by clinical research showing that sadism, or sexually enjoying inflicting pain on others, which requires a lack of empathy for their pain, is common in serial rapists. G. Abel, D. Barlow, E. Blanchard, & D. Gould, "The Components of Rapists' Sexual Arousal," 34 Archives of General Psychiatry 895 (1977).See also R. Hazelwood, R. Reboussin, and J. Warren, "Serial Rape: Correlates of Increased Aggression and the Relationship of Offender Pleasure to Victim Resistance," 4 J. of Interpersonal Violence 65,76 (1989)(sexual sadism found motivating for some serial rapists).
Clinical research on sadistic serial killers finds a distinctive combination of sadistic sexual fantasies, behavioral "try-outs," in which the perpetrator acts out some part of his fantasy sequence, and progression in sadistic fantasies. MacCulloch, et al. 23,25. Among those who do kill, the try-outs often occur because of "the need to maintain the effectiveness of the fantasy as a source of arousal." Id. at 26. The authors conclude: "if a man presents with sadistic sexual fantasies, admits to previous try-outs...and demonstrates a pattern of progression of offending and fantasy, then progression to killing would appear to be a strong possibility." MacCulloch, et al, at 28 (emphasis added).
Jake Baker's hostility to women is pervasive and sexualized. One of the most chilling qualities of his transmissions is his sadistic enjoyment of women's pain and corresponding total lack of empathy for women. Discussing hating women, Baker says:
I look at it this way: It's simply about my pleasure versus their pain, which is incidentally my pleasure. They don't matter, they're just cunts and worthless whores. Why shouldn't they die to me? I'm a man.(A-11)
His desire to dominate women pervades virtually his every mention of sex with women, control over women being the sine qua non of his sexual excitement in both pornography and e-mail. He and Gonda report some trying out in the presence of women, find it sexually arousing, and the fantasies progress. See, e.g. (A-36); (A-39).15
Baker's family background is conflicted. Robert Soichet, The University of Michigan Supplement Report, Report of January 27, 1995 (Baker Appendix, Exh.5)("Soichet") (Baker reports bitter custody battle, abandonment by father, ignored by mother while dating men, then too many restrictions). He was delinquent in adolescence. Sgt. Shannon, The University of Michigan Supplement Report, (January 27, 1995) ("Shannon") (Baker processed as teenage runaway and through the juvenile system; was also psychiatric inpatient for about three weeks.) (January 27,1995). See also Soichet (Baker reports attempting suicide twice as a teenager).
Jake Baker concedes he uses as well as makes pornography, including violent pornography. See also Soichet ("Baker has a collection of about 15 bondage magazines as well as several pornographic videos [including violent ones]"; Shannon (Baker had file of "numerous photos of naked women, some bound and gagged, some naked and being urinated on. Baker also produced numerous pornographic videos including some where females were being tortured.")
When such an individual is found planning to engage in the sexual assaults for which he presents so many well-known risk factors in combination, an apprehension that he will act is more than reasonable. It is unreasonable to think one can know he will not.
These threats of violence against women are made in a society in which women are being assaulted and killed every day, U.S. Department of Justice, Report to the Nation on Crime and Justice 29 (2d ed. 1988) (three of every four women will be victim of a violent crime sometime during their life), some by men with specific indications precisely like defendants.' In this context, more than was ever true for threats to overthrow the government, it is reasonable for authorities charged with public security to be permitted, within strict limits such as those the law of threat provides, to "[seek] to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration." Gitlow v. New York, 268 U.S. 652, 669 (1925). If not on the evidence in Baker, what more must the government await before a threat of violence against women is deemed "true" enough to prosecute?
Indeed, the possibility of negative acts, including sexual violence, resulting from exposure to sexually violent material has been so well accepted that some university ethics committees, such as University of Wisconsin-Madison, have severely restricted research that requires it. This same overwhelming evidence has led to legislative findings that exposure to pornography engenders crime and injury to women, findings accepted in turn by courts in unequivocal terms: "Depictions of subordination tend to perpetuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets." American Booksellers v. Hudnut, 771 F.2d 323, 329 (7th Cir. 1985), aff'd, 475 U.S. 1001 (1986)(invalidating ordinance). Of course, not all pornography is a threat under 18 U.S.C. § 875(c). Rather, threats delivered in part through pornography cannot, ipso facto, be considered harmless and therefore unthreatening.RETURN
Especially clear are Gonda to Baker (A-32)(A-33)(fantasizes torturing female classmates while in class looking at them); (A-61)(fantasizes torture, rape, and murder while having sex with a woman); (A-64)(masturbates to fantasies of torturing a woman while listening to voice of that woman talking in his house); (A-66)(spends time at a bar fantasizing torturing a woman there); (A-77)(fantasizes torturing woman at hardware store while touching tools); (A-79)("I like the belt torture. I took out my belt and imagined it and it was a real turn on!"); (A-87) (description of plan to use pornography surrounded by gun, knife, blow torch.) RETURN
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