By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
The camera pans the images, then lingers on the private parts. Most offensive, perhaps, is a long look at the 1973 Pulitzer Prize-winning photograph showing a naked Vietnamese girl whose clothes had been burned off by napalm, running in pain and terror down a dirt road. As if the image weren't obscene already in its depiction of war, it becomes infinitely more so as the object of Gates' sexual fantasies.
If Gates never actually molested any of his young girlfriends, he was clearly testing their limits, accidentally walking in on them when changing, for example--especially with his favorite, Sierra.
On August 19, 1990, according to the date that Gates' video camera burned into the tape, Gates trained the camera on the butterfly-print shower curtain in his bathroom. The water is running, a young girl's voice asks for conditioner, the camera gets put down for a moment, then is picked up and retrained at the curtain.
There's an eerie moment as Gates evidently worked up his courage, then his voice booms out, "Smile for the camera," and the curtain jerks open.
Sierra jumps, visibly startled, and she grabs the curtain so fast she yanks it too far in the opposite direction before she finally gets it closed. She peers out of one side, embarrassed, and scoldingly says, "Doug," drawing the word out to two syllables.
Gates apologizes profusely and lies to her, telling her there's no tape in the camera.
Shortly afterward on the tape, perhaps the same evening, the camera is back in its usual spot on the nightstand. Gates sits on the bed with Sierra. Her hair is wet, as if she has just gotten out of the shower.
Gates offers her a good-night hug, and they embrace, lying down on the bed. He looks her in the eye, then steals a long kiss on the lips, looking not like an adult kissing a child, but an adolescent boy kissing his first girlfriend.
As he hugs her, he rubs her back longingly, as one might leading up to foreplay. He pecks at her cheeks and lips as he hugs and caresses her for a long five or ten minutes. Mercifully, he never works up his nerve to go further.
"You see a progression in the videos and in Mr. Gates' behavior," says Detective Foremny. "That's called 'grooming and engagement.' He's testing their boundaries. If a child stands up and tells, he's not going to test that child anymore, he's going to say, 'Oh, it's a misunderstanding.' The little girl in the shower? He opened the curtain and she closed it. He's just tested her boundaries. If she'd left it open, he would have gone the next step."
There was no question in Foremny's mind as to the charge he'd file on Gates. Although sexual exploitation of a minor usually involves possession of child pornography--and occasionally production or trafficking in it--he had seen cases where someone, usually a father, had filmed his daughters and their friends while changing. In those instances, the perpetrators would usually plead to a lesser charge of attempted sexual exploitation and be granted probation. This case seemed to fall in that same category.
Gates was offered probation, as well, but chose to go to trial. The jury found him guilty and the judge sentenced him to 12 years.
The overturned decision that acquitted Gates three years later came as a shock, not just to Foremny, but to the prosecutors, as well.
Judge E.G. Noyes Jr., of the Arizona Court of Appeals, began his brief by writing, "We view the facts in a light most favorable to sustaining the conviction."
Noyes noted the state's argument that the legislature had intended to cover the intent of the photographer when it wrote the sexual exploitation statute, and that the lawmakers intended not to allow children to be photographed as sexual objects for the photographer's self-gratification.
However, Noyes drew the line, and wrote: "We disagree with this argument to the extent that it rewrites the statute into one that criminalizes aberrant thoughts without regard to whether the film or photograph produced by those thoughts depicts any minors engaged in sexual conduct."
The state immediately asked the state Supreme Court to review the appeal, and Gates' fate hangs in the balance.
But the statute, flawed as it may be, is written in black and white:
"A person commits sexual exploitation of a minor by knowingly: 1. Recording, filming, photographing, developing or duplicating any visual or print medium in which minors are engaged in sexual conduct."
Among the criteria for defining "sexual conduct" is the "lewd exhibition of the genitals, pubic or rectal areas of any person."
That wording, written into law in 1978, mirrors the federal statutes. The penalties for the act--a mandatory 12 to 17 years--come out of 1985 legislation dealing with violent crimes against children. Sexual exploitation of a minor falls under the rubric of violent crime.
"It is a violent crime," as Bruce Foremny argues. "We look at a violent weapon being a fist, a knife, a gun. When it comes to crimes like this, the violent weapon is the manipulation, the control, the violation of trust. In the other crimes, the trauma passes; in these crimes, it doesn't."