Harvard Law School > Berkman Center > Open Education >

Violence Against Women on the Internet

Case Study: The Jake Baker Case and Violence Against Women on the Internet

The last case study, the Jake Baker case shows the intersections of pornography, the Internet, violence, and limited notions of harm in the arena of violence against women. This case illustrates many of the issues we have already seen: the shortcomings of the law, the accessibility of Internet pornography, and the debate surrounding free speech and the right to bodily autonomy and safety. Please read the excerpts from the district court opinion and appellate court majority and dissent provided below. Please note that the dissent to the appellate court opinion contains very explicit sexual and violent material.

United States of America, Plaintiff,
v.
Jake BAKER and Arthur Gonda, Defendants.
United States District Court, E.D. Michigan, Southern Division
June 21, 1995.

COHN, District Judge.

"It is not the policy of the law to punish those unsuccessful threats which it is not presumed would terrify ordinary persons excessively; and there is so much opportunity for magnifying or misunderstanding undefined menaces that probably as much mischief would be caused by letting them be prosecuted as by refraining from it." The People v. B.F. Jones, 62 Mich. 304, 28 N.W. 839 (1886)

I. Introduction

… Defendant Jake Baker (Baker) is charged in a superseding indictment with five counts of transmitting threats to injure or kidnap another, in electronic mail (e-mail) messages transmitted via the Internet. Now before the Court is Baker's motion to quash the superseding indictment. For the reasons that follow, the motion will be granted.

II. Background

The e-mail messages that form the basis of the charges in this case were exchanged in December, 1994 between Baker in Ann Arbor, Michigan, and defendant Arthur Gonda (Gonda), who sent and received e-mail through a computer in Ontario, Canada. … They all express a sexual interest in violence against women and girls.

The complaint was based on an FBI agent's affidavit which cited language taken from a story Baker posted to an Internet newsgroup entitled "alt.sex.stories," and from e-mail messages he sent to Gonda. The story graphically described the torture, rape, and murder of a woman who was given the name of a classmate of Baker's at the University of Michigan. The "alt.sex.stories" newsgroup to which Baker's story was posted is an electronic bulletin board, the contents of which are publicly available via the Internet. Much of the attention this case garnered centered on Baker's use of a real student's name in the story. …

IV. The Communications

A.

Count I charges Baker and Gonda with transmitting a threat to injure, and quotes from three e-mail messages. In the first message quoted, dated December 1, 1994, Baker responds to a message he had received from Gonda:

I highly agree with the type of woman you like to hurt. You seem to have the same tastes I have. When you come down, this'll be fun! Also, I've been thinking. I want to do it to a really young girl first. !3 or 14. [FN20] There innocence makes them so much more fun--and they'll be easier to control. What do you think? I haven't read your entire mail yet. I've saved it to read later, in private. I'll try to write another short phantasy and send it. If not tomorrow, maybe by Monday. No promises.

FN20. The typographic, spelling, and grammatical errors in this and the following quotations are reproduced from the originals.

On December 2, Gonda responded:
I would love to do a 13 or 14 year old. I think you are right ... not only their innocence but their young bodies would really be fun to hurt. As far as being easier to control ... you may be right, however 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. I will keep my eye out for young girls, and relish the fantasy ... BTW [FN21] how about your neighbour at home, youm may get a chance to see her ...? ...?

FN21. "BTW" is shorthand for "by the way."

The same day, Baker responded:
True. But young girls still turn me on more. Likely to be nice and tight. Oh. they'd scream nicely too! Yeah. 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 ...

The bill of particulars identifies the targets of these statements as: 13 or 14-year old girls who reside in Defendant Jake Baker's neighborhood in Ann Arbor, Michigan, and teenage girls who reside in Defendant Jake Baker's neighborhood in Boardman, Ohio.

This Count falls short of the constitutional "true threat" requirement. As an initial matter, it does not refer to a sufficiently specific class of targets. The more limited class identified in the bill of particulars is not apparent from the face of the communications. Nothing in the exchange quoted in Count I implicitly or explicitly refers to 13 or 14 year old girls in Ann Arbor, nothing in the exchange identifies Boardman, Ohio (Baker's actual home) as the "home" referred to, and nothing in the exchange allows one to determine that the neighbor discussed is a teen-age girl. In reality, the only class of people to whom the messages can be taken to refer is 13 or 14 year old girls, anywhere. This class is too indeterminate to satisfy the requirement of specificity as to the person threatened, even under the liberal interpretation given the requirement by some courts.

As to the content of the messages, Baker's discussing his "tastes" in the first paragraph of his December 1 message does not involve any identifiable threatened action. In the second paragraph of the December 1 message, he expresses a desire "to do it to" a 13 or 14 year old girl. Even assuming that more context would clarify the phrase "to do it to," the second paragraph also fails to mention an intention to do anything. Rather, it seeks Gonda's reaction to Baker's desire, asking: "What do you think?" Discussion of desires, alone, is not tantamount to threatening to act on those desires. Absent such a threat to act, a statement is protected by the First Amendment.

As to Baker's message of December 2, the first paragraph again discusses a predilection toward "young girls," and what it would be like, presumably, "to do it to" "young girls." It does not mention any intention to act in accordance with the expressed predilection. The second paragraph responds to Gonda's question about a neighbor "at home." It says "she'd be a great catch," but expresses no intention to "catch" her, and indicates a desire to "make her cry," but, again, expresses no intention to take any action in accordance with that desire. It is not constitutionally permissible to infer an intention to act on a desire from a simple expression of the desire. The intention (whether or not actually held) must itself be expressed in the statement. Count I fails to meet this standard, and must be dismissed.

B.

Counts II and III are based on the same statement made by Baker in an e-mail message dated December 9, 1994, and charge Baker with making a threat to kidnap and a threat to injure, respectively. The statement for which Baker is charged in the two counts reads:
I just picked up Bllod Lust and have started to read it. I'll look for "Final Truth" tomorrow (payday). One of the things I've started doing is going back and re-reading earlier messages of yours. Each time I do. they turn me on more and more. I can't wait to see you in person. I've been trying to think of secluded spots. but my 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-

As 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 dorr. Knock her unconscious. and put her into one of those portable lockers (forget the word for it). or even a duffle bag. Then hurry her out to the car and take her away ... What do you think?

The bill of particulars identifies the target of the statement as: "Female college students who lived in Defendant Jake Baker's dormitory at the University of Michigan in Ann Arbor, Michigan." Apart from concerns about equating Baker's online persona with his real person, the class of would-be targets here is identified with sufficient specificity.

Presumably, the government offers this statement as a threat to carry out the "method to abduct" it describes. A discussion of a method of kidnapping or injuring a person is not punishable unless the statement includes an unequivocal and specific expression of intention immediately to carry out the actions discussed. Baker's e-mail message cannot reasonably be read as satisfying this standard. As in Count I, the language with which Baker is charged here lacks any expression of an intention to act, and concludes with a request for Gonda's reaction: "What do you think?" Discussing the commission of a crime is not tantamount to declaring an intention to commit the crime. To find an expression of unequivocal intention in this language would require the drawing of an inference not grounded in any specific language of the statement and would exceed the bounds of the First Amendment. Counts II and III must be dismissed.

C.

Count IV charges Baker and Gonda with transmitting a threat to injure. The Count is based on a message from Gonda to Baker, and Baker's response. Both e-mail messages are dated December 10, 1994. Gonda wrote:

Hi Jake. I have been out tonight and 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!

As far as the Teale-homolka killings, well I can think of no tastier crimes ... BTW have you seen any pictures of the girls? You have to see these cunts! They must have been so much fun ... please let me know any details that I cannot get here. I would love to see what you think about it.... As far as the asian bitch story, there is only one possible ending....

Baker responded:
Are tastes are so similar. it scares me :-) When I lay down at night. all I think of before I sleep is how I'd torture a bitch I get my hands on. I have some pretty vivid near dreams too. I wish I could remember them when I get up.

The bill of particulars identifies the target of these statements as: Women who were the subject of Defendant Jake Baker's E-mail transmissions and Internet postings, including--but not limited to--Jane Doe, whose true name is known to Defendant Jake Baker and this Honorable Court.

This Count presents the weakest of all the government's charges against Baker. While the government identifies the class of targets here as women Baker discussed on the Internet, there is nothing in the language quoted here to so limit the class. In addition, since Baker's e-mail often refers simply to "a girl," a class composed of women Baker discussed in his e-mail and stories essentially is a class composed of any woman or girl about whom Baker has ever thought. Such a class is obviously not sufficiently specific.

With regard to the content of Baker's communication, Baker's statement here consists only of an expression of his thoughts before sleeping and of "near dreams" he cannot remember upon waking. To infer an intention to act upon the thoughts and dreams from this language would stray far beyond the bounds of the First Amendment, and would amount to punishing Baker for his thoughts and desires. Count IV must be dismissed.

D.

Count V charges Baker and Gonda with transmitting a threat to injure. It is based on an exchange between Gonda and Baker on December 11-12, 1994. On December 11, Gonda wrote to Baker:

It's always a pleasure hearing back from you ... I had a great orgasm today thinking of how you and I would torture this very very petite and cute south american girl in one of my classes ... BTW speaking of torture, I have got this great full length picture of the Mahaffy girl Paul Bernardo killed, she is wearing this short skirt!

The same day, Baker responded:
Just thinking about it anymore doesn't do the trick ... I need TO DO IT.

The next day, Gonda wrote:
My feelings exactly! We have to get together ... I will give you more details as soon as I find out my situation ...

Baker responded:
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.

The bill of particulars identifies the target of these statements, as in Count IV, as:
Women who were the subject of Defendant Jake Baker's E-mail transmissions and Internet postings, including--but not limited to--Jane Doe, whose true name is known to Defendant Jake Baker and this Honorable Court.

This Count, too, fails to meet the constitutional "true threat" standard. The class of potential targets, as discussed with regard to Count IV, is far too vague. As to the content of the communications, Baker indicates his "need TO DO IT." Like his earlier statements, this language indicates a desire to do something. While use of the word "need" indicates a strong desire, it still falls short "unequivocal, unconditional and specific expression of intention immediately to inflict injury," "needs" go unmet everyday. Baker next indicates, at most, an intention to meet Gonda at some indefinite point in the future--in the next week, month, or several months later. This statement does not express an unequivocal intention immediately to do anything. Also, nothing in the language on which the Count is based indicates any intention to commit specific acts if Baker and Gonda ever were to meet. Like the preceding four Counts, Count V fails to state a charge under §875(c) that can survive a First Amendment challenge, and must be dismissed. This prosecution presents the rare case in which, in the government's words, "the language set forth ... is so facially insufficient that it cannot possibly amount to a true threat."

-------------------------------------------------------------------------------------

UNITED STATES of America, Plaintiff-Appellant,

v.

Abraham Jacob ALKHABAZ, also known as Jake Baker, Defendant-Appellee.

United States Court of Appeals, Sixth Circuit

Argued Aug. 16, 1996; Decided Jan. 29, 1997.

Boyce F. Martin, Jr., Circuit Judge

The district court dismissed the indictment against Baker, reasoning that the e-mail messages sent and received by Baker and Gonda did not constitute "true threats" under the First Amendment and, as such, were protected speech. The government argues that the district court erred in dismissing the indictment because the communications between Gonda and Baker do constitute "true threats" and, as such, do not implicate First Amendment free speech protections.

…We conclude that the communications between Baker and Gonda do not constitute "communication[s] containing a threat" … . Even if a reasonable person would take the communications between Baker and Gonda as serious expressions of an intention to inflict bodily harm, no reasonable person would perceive such communications as being conveyed to effect some change or achieve some goal through intimidation. Quite the opposite, Baker and Gonda apparently sent e-mail messages to each other in an attempt to foster a friendship based on shared sexual fantasies.

…We agree with the district court, that "[w]hatever Baker's faults, and he is to be faulted, he did not violate 18 U.S.C § 875(c)" … the judgment of the district court is affirmed.

Krupansky, Circuit Judge, dissenting.

…Jake Baker (also known as Abraham Jacob Alkhabaz), an undergraduate student attending the University of Michigan in Ann Arbor, for some time prior to November 1994 and continuing until February 1995 was a regular contributor of sadistic fictional "short stories" intended for public dissemination and comment via a Usenet electronic bulletin board. The appellate record contains a substantial anthology of Baker's efforts. Overall, these misogynistic articles evince an extreme and morbid fascination with the concept of the physical and psychological abuse and torment of women and young girls, described in lurid detail, and often culminating in murder.

The "Jane Doe story," which he named after an actual female classmate and which in fact is a relatively mild exemplar of the bestial genre of Baker's fiction, follows: (Last name of a specific female classmate of Baker's omitted).

[Warning: Graphic violent and sexually explicit material follows]

Prologue: The following story start [sic] in media res. The premise is that my friend Jerry and I have broken into the apartment of this girl, [FULL NAME OMITTED], whom I know from call [sic], and are porceeding [sic] to have a little fun with her. ('I' = the protagonist).

Main:

She's shaking with terror as Jerry and I circle her. She'd [sic] almost completely nude now--we've made her take off all her clothes except for her bra and panties. As Jerry and I pass by her, we reach out and feel her velvety flesh, caress her breasts and ass through her underwear. Jerry and I snap pictures of her tiny trembling body from all angles.

She says in a little, terrified voice, "Why are you doing this ... I've never hurt you ... p-please stop!" I pause in front of her. Jerry smiles at her terror. He laughs at her pitiful pleas. I say, "Shut the fuck up, stupid whore!" and hit the side of her head, hard. She collapses onto the ground, crying, curling up into a little ball.

"Alright. Let's have some fun!"

I yank her up by the hair and force her hands behind her back. I quickly get them restrained with duck [sic] tape. Her little body struggles against me as she screams for help. Jerry tears off her panties and shoves them into her delicious mouth, securing them with a tight strip of rope.

She'd [sic] still struggling, screaming into the makeshift gag. I let her drop, to take pictures of her as she struggles against her bonds. As she's fighting there on the carpet, eyes wide with fear, Jerry and I strip. Jerry's got a hard on. I've got a hard on. We laugh.

I grab her bra and rip it off her. Holding her still for Jerry, he fondles her breasts, feeling up her entire body. As she moans into the gag, Jerry comments on how soft she is. I slap her face several time, enjoying the smacking sounds my hand makes against her pink skin. Forcing her to her knees, I rub my cock into her face--over her cheeks and her eyes and her nose. She turns her head, closing her eyes with the humiliation, so I shove my prick as far as it will go into her ear. Her inner cannals [sic] warm; I force it in harder, and my penis-head scrunches up to fit into the small hole, not quite making it. [FIRST NAME OMITTED] groans into her gag. Then, Jerry and I tie her by her long brown hair to the ceiling fan, so that she's dangling in mid-air. Her feet don't touch the ground. She kicks trying to hit me, Jerry or the ground. The sight of her wiggling in mid-air, hands rudely tied behind her back, turns me on. Jerry takes a big spiky hair-brush and start [sic] beating her small breasts with it, coloring them with nice red marks. She screams and struggles harder. I've separated her legs with a spreader-bar; now I stretch out her pussy- lips and super-glue them wide open. Then I take a heavy clamp, and tighten it over her clit. Once it's tight enough, I let go.

I stand back, to take pictures. She's really nice now: Dangling by her hair (I can see where it's stretching her scalp), her breasts and belly are covered with bright red bruises. There's a heavy clamp stretching her cunt down. And best of all, her face is scrunched up in an agonized grimace. Drool and loud squeaks escape through her gag. She's so beautiful like this. Just to add to the picture, I take a steel-wire wisk and beat her ass with it, making bright red cuts that drip blood. [LAST NAME OMITTED]'s tiny pink body is now covered in sweat; nice and shiny in the light.

Jerry tells me her curling-iron's ready. Jerry unplugs it and bring [sic] it over. After taking her down and tying her hunched over a chair, Jerry strokes the device against her bleeding ass cheeks. The heat from it gives her ass small burns. I smile and stroke my cock as she screams in pain and horror. She shakes her head and moans, "Nooo ... nooo" through the gag. I walk in front of her, and remove the gag. Before she can even breath in, I ram my cock in her tiny mouth. Her lips squeeze against my shaft. The head of my prick finds its way down her lovely throat. That's when Jerry ram [sic] the hot curling iron into her tight asshole. She tries to scream, but I shove my cock's [sic] down her throat, and all she manages to do is gag on it. Her throat's quiverings tickle my cock, and I start humping her face furiously. The pain of the hot curling iron in her tender asshole sent her whole body into convulsions; her throat clenched against my cock. God! This felt so good.

Leaving the iron up her asshole, Jerry reached out, pulled one of her small tits away form [sic] her body. Jerry took his knife, and cut her nipple off. She gags on my cock some more, and I pull out just in time to cum all over her pretty face.

As I spew loads of hot white cum onto her face, Jerry continues to maul at her breasts. He pulls them as far as they'll go away from her body, twisting them to cause even more pain. Now that she doesn't have my cock down her throat, gagging her, [FIRST NAME OMITTED] howls out loud. It's not even a human sound. Her eyes glaze over from the pain and torture; a ball of my cum smacks her in the left eye.

Spent, I go grab a beer and watch Jerry finish off play. When he pulls the curling iron from [FIRST NAME OMITTED]'s asshole, her sensitive skin is all burned. He pressed the head of his cock against the tortured opening. Jerry's got a savagely big dick, and would have hurt this girl even if her ass hadn't been burned. [FIRST NAME OMITTED] let out a small scream, but was too weak at this point to make it really loud. She only made fierce grunts as my friend's cock tore apart the inside of her scorched asshole.

I timed Jerry at this. He had a good constituition [sic]. For ten minutes he buggered poor pretty [FIRST NAME OMITTED]. Then he finally came inside her. Standing up, he walked around to see her face. Tears and sweat mixed with my cum on her cute face. Jerry grabbed a handful of her hair and pulled her face up to look. Her eyes, barely human, begged him to stop. He laughed aloud and gave her a firm smack. Her head jerked sideways with a snap.

"C'mon, man, let's go." My friend said. So we got the gasoline and spread it all over [FULL NAME OMITTED]'s apartment. We chucked it over her. It must have burned like hell when it came into contact with her open cuts, but I couldn't tell. Her face was already a mask of pain, and her body quivered fiiercely [sic].

"Goodbye, [FIRST NAME OMITTED]" I said, and lit a match ...

By November 1994, Baker's sadistic stories attracted the attention of an individual who called himself "Arthur Gonda," a Usenet service subscriber residing in Ontario, Canada, who apparently shared similarly misdirected proclivities. Baker and Gonda subsequently exchanged at least 41 private computerized electronic mail ("e-mail") communications between November 29, 1994 and January 25, 1995. Concurrently, Baker continued to distribute violent sordid tales on the electronic bulletin board. On January 9, 1995, Baker brazenly disseminated publicly, via the electronic bulletin board, a depraved torture-and-snuff story in which the victim shared the name of a female classmate of Baker's referred to below as "Jane Doe" [FN3] This imprudent act triggered notification of the University of Michigan authorities by an alarmed citizen on January 18, 1995. On the following day, Baker admitted to a University of Michigan investigator that he had authored the story and published it on the Internet.

FN3. Although the true name of "Jane Doe" was known to the district court and to this appellate forum, her identity has been concealed to spare this young woman any additional and unnecessary fear, emotional trauma, or embarrassment. The record reflected that during an interview concerning Baker's Jane Doe publication conducted by a University of Michigan investigator, Jane Doe "appeared to be controlling herself with great difficulty[,]" resulting in a recommendation for psychological counseling by University of Michigan personnel.

Later that month, pursuant to Baker's written consent, university security personnel searched the defendant's dormitory room, personal papers, and computer files including his unique e-mail compartment. This investigation surfaced a second violent and reprehensible tale featuring Jane Doe's actual name, as well as her accurate residential address. The search of Baker's electronic mailbox disclosed a chilling correspondence between the defendant and Gonda chronicling the two men's plans of abduction, bondage, torture, humiliation, mutilation, rape, sodomy, murder, and necrophilia. Most ominously, these messages cumulated in a conspiracy between the two men to realize their aberrant e-mail discussions and exchanges by implementing an actual abduction, rape, and murder of a female person.

…Although the majority of this panel now affirms the judgment of the district court, it has avoided addressing the First Amendment issue. Instead it mandates, by judicial license, that the communications charged in the superseding indictment did not constitute "threats" of any kind because the panel majority interprets §875(c) to require, as a matter of law, that a "threatening" communication must be accompanied by an intent to intimidate or coerce someone to attain some "change" or "goal." It is obvious, however, from the concise language of 18 U.S.C. §875(c) that Congress refused to include an "intent to intimidate or coerce someone to attain some change or goal" as an element of the criminal act addressed therein:

Whoever transmits in interstate or foreign commerce any communication containing ANY threat to kidnap ANY person or ANY threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C. §875(c) (emphases added).

The words in §875(c) are simple, clear, concise, and unambiguous. The plain, expressed statutory language commands only that the alleged communication must contain any threat to kidnap or physically injure any person, made for any reason or no reason.

…Thus, the plain language of 18 U.S.C. §875(c), together with its interpretive precedents, compels the conclusion that "threats" within the scope of the statute in controversy include all reasonably credible communications which express the speaker's objective intent to kidnap or physically injure another person …

Because the communications charged against Baker could be found by a rational jury to constitute "threats" within the ambit of 18 U.S.C. §875(c), the district court's resolution that a rational jury could not find that any of these communications comprised constitutionally unprotected "true threats" is ripe for review. The Supreme Court has recognized that, while the First Amendment extends varying degrees of protection against government censure to most forms of expression (with political speech receiving the most stringent safeguards), certain forms of speech are deemed unworthy of any constitutional protection and consequently may be criminalized. A "threat" is a recognized category of expression which warrants no First Amendment protection. However, only communications which convey "true threats" (as opposed to, for example, inadvertent statements, mistakes, jests, hyperbole, innocuous talk, or political commentary not objectively intended to express a real threat) are "threats" outside the embrace of the First Amendment's guarantees. …

… The panel majority may casually conclude within the security of chambers that Baker's threats conveyed to Jane Doe in his articles published on the Internet were nonintimidating. However, Jane Doe's reaction to those threats when brought to her attention evinces a contrary conclusion of a shattering traumatic reaction that resulted in recommended psychological counseling.

Accordingly, I would reverse the district court's judgment which dismissed the superseding indictment as purportedly not alleging "true threats," and remand the cause to the lower court. I DISSENT.

Return to VAW Module II

Go to Part 8 - Discussion Questions