Attorney Harvey Silverglate who represented Bernard Baran wrote that he was convicted during the “national panic over supposed sexual abuse of preschool children. Baran fell victim to homophobia, hysteria, and arguably prosecutorial misconduct.” The Boston Globe wrote: “In an atmosphere of homophobia and hysteria, the defendant, an openly gay teenager . . . didn’t stand a chance.” (my emphasis in both quotes)
Having been a prosecutor during those days I cannot disagree with Silverglate about the hysteria surrounding preschool child abuse that spread through the land. Some who had preschool children in their care were demonized and prosecuted. Silverglate properly described these events as “modern-day witch hunts” noting that two occurred in Massachusetts. Wikipedia has a list of all of them.
Those who missed it might consider the present reaction of our people to the Ebola problem. There is something in the American character that first showed itself during the Salem witch trial days that lingers on. It is ready to spring out and infect most of us when the temperature is right.
However I suggest it is a bridge to far to suggest that homophobia played any role in Bernard Baran’s prosecution or conviction. He was a 19-year-old gay man. As much as I remember the hysteria around child abuse I also do not recall that the sexual identity of a person played a role in decisions to prosecute a person. Nor do I recall any widespread fear that gay men were molesting young preschool children. My review of the other cases where people were caught up in the hysteria of child abuse did not disclose others that involved gay people.
How then did the issue of homophobia creep into the case? It seems the family of one of the victims, referred to as Boy A, complained to his preschool that they did not want a gay man taking care of young children. The Appeals Court noted they referred to him as a queer. There is no indication any of the others involved in the prosecution had that attitude.
You could not be faulted for believing the prosecution had introduced the issue of Baran’s sexual preference reading either the editorial or the op-ed. It didn’t. The issue was raised by defense counsel. He was planning to defend Baran by suggesting the charges stemmed from homophobia. The Appeals Court said: “trial counsel was unable successfully to present this theory, having little documentation in hand to support the argument.”
The family of one victim as the Globe said used a slur against Baran. There was no other evidence of homophobia. Prior to any juror being impaneled an individual voir dire of that juror was held. The juror was asked whether the matter of the defendant’s homosexuality would affect his or her ability to be impartial. Those who felt that it would were excluded. Those who sat on the case were acceptable to the defendant as being capable of rendering a fair and impartial decision.
Justice Lenk who wrote the opinion granting Baran a new trial for the Appeals Court faulted the defense counsel for having a strategy whereby he brought Baran’s sexual orientation, including that he previously had venereal disease, into the trial. She wrote that at the time of the trial “private consensual homosexual sex was criminalized in many states and homosexuality, often described as a ”crime against nature” was routinely linked with . . . , child molestation, . . . and pedophilia.” The citations she offered to support that statement do not do so.
Lenk went on to suggest that during the time of Baran’s trial “the HIV/AIDS epidemic emerged.” She noted it affected primarily gay men and caused considerable panic because it was not well understood. Those who contracted it faced ostracism. She said defense counsel had not properly prepared for a trial “where very small children would testify to unspeakable acts”. She went on that in the context of the time to “identify Baran’s sexual orientation, and not to contest evidence as to gonorrhea . . . he facilitated the speculative, stereotypical, and deeply insidious links between homosexuality, gonorrhea, and child molestation.”
She wrote defense counsel wanted to raise “parental and communal homophobia as the reason for the charges brought against Baran.” Judge Lenk decided that would have been a “terrible risky” strategy “given the times and the numerous child molestation charges” even had the defense counsel properly prepared his case. She said defense counsel presented no expert witnesses nor had a wise cross-examination to support his strategy. She stated what he did was “manifestly unreasonable.”
Missing from all of this is any showing of homophobia on the part of the prosecutor, the judge or the jury. The issue came up because defense counsel thought it would be a good defense. It wasn’t. No court has ever said homophobia played a part in the jury verdict. For Silverglate and the Boston Globe to suggest that it had any outcome on the verdict is plainly wrong.