By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
"The statutes are written like they are in an attempt to comply with the First Amendment," he continues. The fear is that if the statute were written any more broadly, it would be a short step to convict a parent taking an innocent picture of a baby in a bathtub.
But should a baby sitter or Sunday-school teacher be allowed to take pictures of your child in the bathtub?
"Maybe we should have another statute to include this type of behavior," says Vince Imbordino, the deputy county prosecutor who handled the Gates case. "I think it's included, but obviously the Court of Appeals disagrees. If the Supreme Court agrees with their opinion or declines to accept review, then what that means is that the statute is written too narrowly or not specifically enough for this sort of conduct. If that's the case, we obviously have to get the legislature to change it."
Hertzberg agrees with the latter argument. "They could undoubtedly frame a statute that would involve nonconsensual taking of photographs of children that probably could be sustained on some type of privacy basis and wouldn't implicate First Amendment issues because of the consent."
And so Douglas Gates may slip through the system, in which case the children he traumatized would become the unfortunate victims of legal overbreadth, sacrificed to the First Amendment. Justice is blind, and sometimes so are its practitioners.
Mara Siegel, the public defender who represented Douglas Gates in his trial, was overjoyed at the appeals court's decision to reverse Gates' conviction.
"There was nothing lewd about what he did," she says. "It was the most innocuous thing you've ever seen. These little girls would change into their bathing suits. They weren't forced to pose.
"I grew up in New York City, and you'd go to Coney Island, you'd go to the beach, and there'd be guys jerking off, people grabbing you in the subway. I mean, it's not that big a deal. I think you're overstating the trauma. Yeah, sure, it's a drag, but it's not a molestation. Assuming that it's illegal, assuming these pictures were lewd, which they aren't, it's just not the same."
The mothers of Gates' victims, on the other hand, tell of how their daughters can't sleep at night, or don't want to go anywhere for fear of strangers.
One of the 10-year-olds brought to Foremny a Bible that Gates had given to her. She wanted to give it back, she told him, because she could no longer believe what was written in it.
On the inside cover, Gates had inscribed, "You are a special girl and I am proud to have you as a friend. I love you very much, love, Doug.