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.
Though his family had spent some years in Phoenix, Gates grew up in southern Oregon, then returned to Arizona in the mid-'80s to go to a technical school where he learned to be a computer draftsman. He was a devout Christian, fond of Christian music. And when he applied as a Sunday-school teacher at Calvary Chapel in north Phoenix, he detailed his dedication to Jesus on his application form. "He is my father," he wrote.
After Gates' arrest, Glendale police found his diary, a childish book with a picture of the cartoon character Ziggy on the cover and the title "Afterthoughts to Think About."
On the very first pages, he introduced himself, writing, "Somewhere along the line, I developed a growing love for children. Unfortunately, this also brought on an attraction to young girls, a sin with which I struggle every day. Although I know I could never hurt a child, I pray unceasingly that God would help me overcome this attraction. I know God has removed several girls from my life because of this lust and it breaks my heart."
Like many pedophiles, Gates interacted better with children than with adults, perhaps because he is so childlike himself.
In 1991, in a presentencing letter to the judge, Gates' boss wrote, "Simply put, Doug is a 12-year-old boy in a 24-year-old body, and I judge his actions accordingly. If you had a chance to see Doug, I am confident you would see a preadolescent boy standing before you."
Gates was everything a parent would look for in a Sunday-school teacher. He was devout, and he seemed so gentle and trustworthy that parents were willing to overlook that he was a single man in his 20s with few apparent adult relationships.
He was so trusted that one mother left her 10-year-old daughter to live with him after she had been evicted from her apartment for shooting her live-in boyfriend.
Pedophiles often truly care about the children they molest, their love attachments misguided or fixated on an age they never outgrew. But their methods of finding children are downright predatory, and Gates was no exception.
"Every single one of his victims has a single mother," says Detective Bruce Foremny, "all poor, divorced families with a lot of distractions who are really looking for someone to be there for their kids and to help them out."
Carla, the 14-year-old who discovered the camera, had been molested a year earlier, and Gates had offered himself to her mother as a "counselor"--though he had no credentials to do so. Paula, the child who was living with him, came from a family fragmented by divorce or domestic violence, as did his favorite child, Sierra. (The names of all the children have been changed.)
Gates would befriend girls at his apartment complex, then meet the girls' friends. He would get to know the mothers, none of whom were members of his church, then recruit the girls for his Sunday-school class, and even drive them there twice a week.
All of his young students would fill out a questionnaire stating their favorite foods and movies, whether they liked swimming or collecting stickers. It was a seemingly innocent set of questions, but the answers, in the hands of a pedophile, become a road map to seduction.
Sprinkled into the childish prattle of Gates' diary--"God bless Sierra," and "God bless Paula" and accounts of the adorable child he saw at the movies--were hints at the sexual conflict playing out in Gates' psyche. "Satan has been filling my head with lies," he would write. "God help me."
Sometime in 1990, as near as anyone could tell, Satan began to get the upper hand. Gates set up his video camera on his night table.
Gates' tapes are more voyeuristic than sensual, more pathetic than scandalous. He would appear in the frame, peer into the camera to check the angles. If a little boy would go into the bedroom to change, he would gruffly send him off to change in the bathroom.
For ten- and 15-minute stretches, the camera would focus blankly on the bedroom wall, and then 10-year-old Sierra would enter with her little brother and lovingly help him in and out of his bathing suit as she changed her own, the two of them giggling and cackling and tickling each other.
Other little girls would play with dolls on the bed, or throw towels at each other. Interspersed with the bedroom scenes would be an occasional birthday party. In one segment, Gates filmed a pool party, his camera zooming in on each bathing suit that has slipped enough to reveal an inch of buttocks or a 10-year-old's nipple, or on two little girls playfully mooning each other.
On one tape, Gates had assembled a montage of still photographs of children in various states of innocent undress, photos taken from art books or medical texts, tiny children posed naked with their parents on the beach, pictures of Third World children that might have come from National Geographic, little girls caught unaware with a pubescent breast showing through the armhole of a blouse, undeveloped genitals visible beneath a skirt. One picture taken from an ancient movie magazine shows a 6-year-old Natalie Wood, topless, feeding milk to a pet cat.
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."
How Gates fares before the state Supreme Court may be influenced by a similar case that is being brought to the U.S. Supreme Court for the second time in as many years.
In March of 1991, about the same time that Douglas Gates was making his secret tapes in Glendale, a former grade school teacher in Pennsylvania was charged with receiving child pornography through the mails, a federal offense.
Stephen Knox had already been convicted once for possession of pornography. Trying to satisfy his pedophile urges without breaking the law, he had ordered three videotapes from a Las Vegas distributor that the distributor promised were legal.
The tapes featured young girls ranging in age from 11 to 17 dancing in an outdoor park. All of them were clothed in bathing-suit bottoms or leotards or panties, but the camera focused on their crotches as they bounced across the screen, opening and closing their legs, "dancing or gyrating in a fashion indicative of adult sexual relations," as the court described it.
Knox was found guilty in district court and his conviction was upheld in the circuit court. Then Knox appealed to the Supreme Court, and the solicitor general in the Bush administration Department of Justice had decided to present the case to the high court.
But when the Clinton administration came to power, it thought otherwise. Drew Days, the Clinton-appointed solicitor general, returned the Knox case to the Third Circuit Court with a scolding. The Knox tapes contained no nudity, Days argued, and therefore did not qualify as "lascivious exhibitions" of the genitals. The Third Circuit was to reconsider its guilty verdict.
When word got out that the Clinton Department of Justice wanted to acquit a pornographer, there was an uproar in Congress. More than 200 members of Congress filed as friends of the court to protest Days' reluctance to accept that the Knox tapes were pornographic. The national press theorized the opinion caused Days, a prominent African-American jurist with a distinguished record in civil rights law, to be passed over for a vacancy on the Supreme Court.
The Third Circuit Court, however, refused to comply with Days' suggestion. "We upheld Knox's conviction," the decision read. "In doing so, we interpreted the statutory phrase 'exhibition of the genitals or pubic area' as encompassing the lascivious focus on these body parts even though they were always covered by underwear, leotards, or other thin but opaque clothing. . . . We are the first, and, to date, only court which has interpreted the statute to allow for a conviction under these circumstances."
The Phoenix Gazette editorialized about Days' remanding the case to the circuit court as proof of the degeneracy and promiscuous permissiveness of the Clinton administration.
"Ask the Phoenix Gazette the next time they publish women's underwear ads if they're showing pictures of women's genitals," quipped one Department of Justice official who did not want to be identified.
Of the Knox tapes, he added, "I kept waiting for the good parts. It's not enough that a dirty old man takes pictures of children doing innocent things to show to other dirty old men."
The Knox case is back at the Supreme Court, and whether it hears the case or just lets the lower-court decision stand may depend more on politics than on legal interpretation.
As in the Gates case, the Third Circuit judges and the Congress were outraged by the intent of the videotapes that Knox received in the mail. Although the company marketing them was trying to stay legal, it was clearly pandering to pedophiles. Its advertising catalogue copy read, "Just look at what we have in this incredible tape: about 14 girls between the ages of 11 and 17 showing so much panty and ass you'll get dizzy. There are panties showing under shorts and under dresses and skirts; there are boobs galore and T-back (thong) bathing suits on girls as young as 15 that are so revealing it's almost like seeing them naked (some say even better)."
And even if Knox and his lawyers claimed that the videos did not meet the legal definitions of lewd exhibition of the genitals, Knox had written notes on the videotape boxes to describe the tapes' contents: "15 year old shows nipple" and "13 year old flashes."
While the Knox tapes showed lascivious views of children's crotches but no nudity, the Gates tapes showed nudity without lascivious behavior.
Before retiring to deliberations, the Gates jury had been read a list of criteria to consider called "Dost factors," named for another federal child pornography case. Among the Dost factors is one that reads ". . . whether the pictures are intended or designed to elicit a sexual response from the viewer."
Indeed, Gates admitted that he made his tapes for his own sexual needs.
But the Dost factor wording does not appear anywhere in the actual statute defining sexual exploitation of children. The appeals judge was considering the black-and-white terminology of the law, not the instructions given to the lower-court jury, and he overturned the guilty verdict.
Richard Hertzberg, a Phoenix attorney who has defended many obscenity cases, comments, "I think the prosecutors [in the Gates case] made a legitimate effort here. I don't think anyone's out to stifle free press in this case or to prevent adults from seeing what they want. They just ran into a tough judge. He read the statute like it's written.
"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.
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