AN OBSCENE LOOPHOLE DOUGLAS GATES WENT TO PRISON FOR SECRETLY VIDEOTAPING NAKED CHILDREN NOW, AN APPEALS COURT SAYS HE SHOULD GO FREE

Don't go breaking my heart.
Carla was singing along to the radio as she slid out of her jeans. It was April 16, 1991, and Carla, who was 14, was spending the night with her brother and sister at the apartment of their Sunday-school teacher, Douglas Gates. Gates was a friend of the family, and often helped out by taking care of the kids.

Carla was in Gates' bedroom putting on her bathing suit so she could take a swim in the apartment-complex pool.

She slipped off her panties and pulled on her bikini bottom, coughed as she took off her tee shirt and bra, then slithered her way into her bikini top.

As the radio blared, Carla started to dance absent-mindedly, grabbing her tee shirt to wear as a cover-up.

Suddenly, she heard a high-pitched whirring noise. Carla's eyes widened when she realized it was coming from a video camera sitting on a night table. If she had noticed it before, she assumed it was turned off.

Carla hurried around Gates' big water bed, rewound the machine and peered through the view finder long enough to see herself pull off her jeans. She set the camera back to the beginning of the tape, thinking it would record over her disrobing, and hurriedly left the room.

Elton John was still singing, but Carla's heart was broken.

The next Monday, Carla reported the incident to a guidance counselor at school, who called the Glendale police, as did Carla's mother.

Detective Bruce Foremny, who specializes in sex crimes against children, took the calls, and obtained a search warrant for Gates' apartment. Gates was not home when Foremny and another detective arrived, so the police officers picked the lock on the front door, and found the camera and a pile of videotapes that showed not only Carla undressing, but four other girls, ages 10 and 12, as well.

When Gates showed up later that evening, the police were still going through his video collection. Foremny confronted Gates with what he had found, and Gates spilled his guts. He admitted that he was a pedophile and that for the last six months, he had been filming the young girls who attended his Sunday-school class. But, he maintained, he had never molested any of them.

Under Foremny's trained questioning, the young girls--10, 12 and 14 years old--confirmed that Gates had never had any sort of sexual relations with them. And so Gates was charged with sexual exploitation of a minor, essentially a child pornography charge.

"It's the only thing we could charge him with," says Vince Imbordino, the deputy county attorney who prosecuted the case.

And although Gates' case did not exactly have to do with kiddie porn, a jury found him guilty, and a judge sentenced him to 12 years in prison, the mandatory minimum sentence for the offense.

On September 27, 1994, however, the Arizona Court of Appeals overturned Gates' conviction and recommended that he be acquitted. Although E.G. Noyes Jr., the judge who wrote the opinion, did not deny that Gates' behavior was offensive, he felt obligated to follow the letter of the law.

The sexual exploitation of a minor statute requires that the offending images depict children engaged in sexual conduct. Among the acts that could be construed as sexual conduct is "lewd exhibition of the genitals," the definition used to convict Gates.

Judge Noyes disagreed. Children innocently changing clothes was neither lewd nor sexual.

As Detective Foremny said, "I guess if your victim isn't slutty, it's okay."

No one questions that Gates is a pervert and a pedophile, a man dangerous to children.

At issue in his appeal is whether the intent of the pornographer can be taken into account in convicting him, and it's an issue that has a parallel in the U.S. Supreme Court. How far can the courts go in interpreting the law without threatening the First Amendment?

Although Gates took advantage of children for his own sexual gratification--he admitted he used his secret videos to fantasize about the children, and would masturbate as he watched them--the videos don't fit the legal definition of pornography because the children were not acting in any sexual manner.

If Gates' conviction were to stand, it might be too easy a step from there to convict a parent taking innocent pictures of Baby in the bathtub. The law is written the way it is to protect that First Amendment right; Gates slipped through the loophole the language left.

And furthermore, the Court of Appeals reasoned in overturning Gates' conviction, the lower-court verdict suggested that a man was guilty for vile acts he had only thought of, but not yet committed. Gates, after all, had not molested the children. The law can't legislate what a person thinks, no matter how distasteful.

While Gates sits in the state prison at Florence wondering if he's going to be released, the Arizona Attorney General's Office has already appealed to the state Supreme Court to keep him there. Douglas Gates is a large man, a 200-pounder with a teddy-bear waddle, a jaw like Jay Leno and a voice like Bullwinkle. He was 24 at the time of his arrest, but his considerable girth made him look older.

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