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She said no, but I could tell she wanted to.
July 24, 2010 8:17 PM   Subscribe

A St. Louis woman lost her lawsuit yesterday against Girls Gone Wild. She was dancing in a bar while the crew was filming, and repeatedly refused to flash her breasts, saying "No, no" to the camera. Her top was then pulled down by another woman, and the footage was used without any signed release or the woman's consent. After deliberating for 90 minutes, the jury decided that "Through her actions, she gave implied consent... She knew what she was doing." (Previously.) (Previously.)
posted by karminai (230 comments total) 18 users marked this as a favorite

 
Ah, She knew that she was being a woman. Through her actions of existing. I see. That is what she was doing.
posted by TwelveTwo at 8:26 PM on July 24, 2010 [40 favorites]


Remember Jenna from How to trick people into thinking you're good looking? She blogged about this today. Here's her take:

Oh my god bitch please. I’ve had a few friends upset with GGW and they all tell the same story, they knew the cameras were there. In fact GGW pretty much screams their presence from the top of a mountain because it’s and instant titty fest once they do. Their parties are promoted for months which girls flock to them for some apparent reason, and then they cry to their daddy’s when their boobs are on DVD. I’ve even been told that certain girls get paid a couple hundred bucks if they show their tits or do more because they’re hot. If you’re AT a Girls Gone Wild party that’s fucking consent. Sorry.

Not to mention, if you’re at a GGW party, chances are lots of people have seen your boobs. You’re gonna tell me that the embarrassment that came from this is worth 5 fucking million dollars? Boobs are boobs dude, get over it. 5 million dollars my ass. Go home.


Food for thought.
posted by nathancaswell at 8:27 PM on July 24, 2010 [15 favorites]


Two things I didn't see in the links that I would love to have the answers for: what was the gender of the jury (all male, 50/50, what?), is there a chance to appeal this decision?
posted by el io at 8:27 PM on July 24, 2010


After reading about this yesterday I thought of creating a post, but the whole thing made me too angry and depressed to frame it well. Thanks for doing this - it's a terrible story about one of the most despicable companies in the country and a jury of its peers that sees nothing wrong with profiteering off footage of women being sexually assaulted.

I just wonder about the people who watch this. What does it mean to consume media of someone being violated against her will, and then to masturbate to it. Let's drop the pretense that people can think there's actual consent here or elsewhere. This is pretty clearly footage of a violation, one that's deeply invasive and humiliating. What does it mean to knowing consume this? To get off to it?
posted by allen.spaulding at 8:29 PM on July 24, 2010 [7 favorites]


Wow. I'm so outraged for her, I can hardly type. What a completely ridiculous system. I'd love to believe in the superiority of my country's legal system... but I bet it's possible the same thing could happen here. Misogyny, do you know no bounds?
posted by taff at 8:31 PM on July 24, 2010


While I don't doubt Jenna's point, if you go to one of these parties, and while there decide not to show your breasts for the camera (assuming she'd originally intended to participate - I'm pretty sure some people just go for the feel of the party, if these things are really this big) - then I'd say they should have respected that.

There's no time limit on decisions like that.
posted by AdamCSnider at 8:32 PM on July 24, 2010 [30 favorites]


I have never wanted to serve jury duty so badly.
posted by quadog at 8:34 PM on July 24, 2010 [3 favorites]


Jenna's derisive remarks on a site with "hot videos" and "hot galleries" are this year's version of logic? Give me a break.
posted by lukemeister at 8:34 PM on July 24, 2010 [5 favorites]


What an odd response from Jenna. Even if this woman was displayed poor judgement, that's not exactly "implied consent," is it?
posted by danb at 8:35 PM on July 24, 2010 [2 favorites]


was displayed
posted by danb at 8:35 PM on July 24, 2010


I don't disagree with you lukemeister, I just thought it cast some light onto the previous post and her "insightful" deconstruction of the lengths women go through to appear attractive to men at clubs. That and I wanted to stir up some shit.
posted by nathancaswell at 8:37 PM on July 24, 2010 [2 favorites]


Those vindicated under "implied consent" rulings seem to unanimously be the legal equivalent of the population of Mos Eisley: a wretched hive of scum and villainy.
posted by griphus at 8:38 PM on July 24, 2010 [5 favorites]


If this is implied consent then there's no way speed cameras violate privacy if you knowingly drive on roads that have them.
posted by thorny at 8:39 PM on July 24, 2010 [9 favorites]


Hang on a second. I haven't seen the video, or heard the entire case, and though I've read all the links they basically all have the same two stock quotes. Eleven of twelve jurors thought she did indicate consent; what have they seen that we haven't?
posted by brina at 8:41 PM on July 24, 2010 [10 favorites]


Metafilter: I wanted to stir up some shit
posted by AdamCSnider at 8:43 PM on July 24, 2010 [3 favorites]


Nice title for some BaitFilter.*eyeroll*
posted by P.o.B. at 8:44 PM on July 24, 2010


Joe Francis is a despicable human being, and encourages the same behavior in his crews. "Being there" is not consent, no. Not for exposing yourself, not for anything else but being there.
posted by Marisa Stole the Precious Thing at 8:46 PM on July 24, 2010 [19 favorites]


With the jury's logic, then getting raped at a frat party can't happen, because being there is implied consent. I mean, we all knows what goes on at them, right?

What happened to no means no?
posted by figment of my conation at 8:53 PM on July 24, 2010 [12 favorites]


The explanations in the articles are pretty thin, but the most sense I can make of the "consent" argument is that she consented to being filmed because she attended an event that was (presumably) publicized as one with live filming, and so Girls Gone Wild can use that footage even though she didn't consent to the assault by the person who (presumably) wasn't employed by Girls Gone Wild. Who knows if that was the actual argument, but that's my guess.

But while I can sort of make sense of that argument, this is a video of sexual assault, made many times worse by Girls Gone Wild -- who, to mince no words, make sexual assault their business model. It seems to me that there would be no First Amendment concern with making the knowing distribution of videos of sexual assault illegal and subject to civil actions in the same way the US makes the knowing distribution of child pornography illegal and subject to civil actions.

I don't know if there is such a law in place in any state in the US, but I don't see why they couldn't be enacted.
posted by Marty Marx at 8:58 PM on July 24, 2010 [5 favorites]


If you’re AT a Girls Gone Wild party that’s fucking consent. Sorry. Not to mention, if you’re at a GGW party, chances are lots of people have seen your boobs.

Wow. In 2010 in the USA people are *still* saying that by being in a certain place at a certain time, or by having done sexual things in the past, you have no right to complain over what is done to you sexually?

How is this real?
posted by Ashley801 at 9:00 PM on July 24, 2010 [81 favorites]


Patrick O'Brien, the jury foreman, told a reporter later that an 11-member majority decided that Doe had in effect consented by being in the bar and dancing for the photographer.

That's what a jury decided equaled consent to having her top pulled down, despite saying no. I absolutely do not get it.
posted by Marisa Stole the Precious Thing at 9:04 PM on July 24, 2010


How is this real?

She's a gogo dancer who "writes" for one of the most misogynist popular blogs there is whose entire contribution to the site before her video blew up was winning a hot body competition, posting a picture of Evan Longoria's dick, and starring in a couple youtube segments called "Getting Weird With Jenna." Then her vid gets big, she goes on Inside Edition and calls herself a full time blogger, and posts 3 articles the next day, one of which totally caters to the blog's misogynist, sports douche readership.

That's how. Not to derail this and make it all about her, but I'm still amazed that people thought she was making some awesome meta comment with her initial video. Which, for the record, was not funny.
posted by nathancaswell at 9:05 PM on July 24, 2010 [17 favorites]


What I don't understand is why GGW would even bother to put themselves in this kind of situation, which clearly must have cost them a bunch of money in legal fees. There is obviously no shortage of girls who DO sign the consent forms, so why the hell not just skip the footage with this girl in it? It's almost as if they are like 'this girl didn't want to sign? Fuck her we're gonna put her in just to spite her.' It makes no sense.

Now, having worked in television, and having had to get random strangers to sign consent forms while a camera crew swoops through a public event, my guess is they never bother to check who signed and who didn't. It's nearly impossible and it's never done prior..always after the fact. It's a laughable formality. But you'd think a company whose stock and trade is so clearly near the line and would so obviously get hit with a lot of law suits would at least try to make an effort to protect themselves by being rigorous with the consent forms.
posted by spicynuts at 9:11 PM on July 24, 2010 [2 favorites]


Now, having worked in television, and having had to get random strangers to sign consent forms while a camera crew swoops through a public event

I don't know about GGW, but I do know that on a lot of film sets there are signs posted everywhere that warn that a film shoot is going on and by entering the premises you are consenting to have your likeness reproduced.
posted by nathancaswell at 9:12 PM on July 24, 2010 [2 favorites]


Actually you know what, I'm surprised the jury's argument wasn't that she consented by not wearing a bra.
posted by spicynuts at 9:13 PM on July 24, 2010 [2 favorites]


I always wondered if those signs were legally binding... maybe they had something to do with this?
posted by nathancaswell at 9:13 PM on July 24, 2010


That she didn't sign a release is damning to me, and especially stupid for the company, which is hardly a stranger to getting sued and should know better. That said, without seeing the video, it's hard to know how seriously to take her objections -- was this a "oh, ha ha ha, not that, anything but that" or a "Jesus Christ get the fuck off me!" It's an important distinction. Normally, that distinction wouldn't matter to me, but unless she was led there under false pretenses, I'm sorry, I really am, but who doesn't know what this company is all about? If she knew it was a snake when she picked it up, it does start to seem like a cash grab. That also said, these people are total fucking shitbags who deserve to pay asshole tax anyway, so it's too bad she lost the case.
posted by kittens for breakfast at 9:14 PM on July 24, 2010


I don't know about GGW, but I do know that on a lot of film sets there are signs posted everywhere that warn that a film shoot is going on and by entering the premises you are consenting to have your likeness reproduced.

Yes, and I'm sure they had those there. However, I don't think (or I didn't before this) that you could consent to assault simply by being there, regardless of what the signs say.
posted by spicynuts at 9:14 PM on July 24, 2010


Yeah, I always assumed those signs had no legal validity and were there just to dissuade lawsuits... just pointing them out to people who may not have ever seen them.
posted by nathancaswell at 9:15 PM on July 24, 2010


Girls Gone Wild suffers from a completely embarrassing lack of real sexiness or self-awareness. It's like watching prairie dogs scurry around a trash dump. I hope the bus with the owner Francis and the other principals goes off a bridge and explodes, and then alligators devour them while they're burning alive.
posted by Burhanistan at 9:16 PM on July 24, 2010 [46 favorites]


Normally, that distinction wouldn't matter to me, but unless she was led there under false pretenses, I'm sorry, I really am, but who doesn't know what this company is all about?

How is that people still cannot make the distinction between knowing what something is about and being assaulted? Also, I can't believe you just said "not know how serious to take her objections". Leaving aside the whole 'no means no' thing, SHE DID NOT SIGN THE CONSENT FORM! Meaning, her objection seems pretty clear.
posted by spicynuts at 9:18 PM on July 24, 2010 [7 favorites]


i understand the outrage and i think the story is being presented everywhere about the consent to show her boobs - but, wasn't this lawsuit about the consent to be filmed? couldn't it be argued that if you're at a bar with a huge camera crew and big buses that say GIRLS GONE WILD and big lights, that you consent to being filmed? the top being pulled down is a different issue, no? if she wanted to pursue that avenue, she would have to charge the woman who pulled her top down with sexual assault?

in no way am i saying that she implied consent to get her boobs out and i think GGW is a piggish, awful company, but, having walked by one of these parties, i can see how a jury would say that she consented to be filmed.
posted by nadawi at 9:21 PM on July 24, 2010 [17 favorites]


but, wasn't this lawsuit about the consent to be filmed?

I'm not sure you're thinking this one all the way through.

If you get interviewed by the local news for a basic man-on-the-street question, and they decide to broadcast your social security number, banking information and passwords, and display hundreds of private emails they get from a third-party who hacked into your computer, wouldn't you be mad? Does giving consent to answer the question "what do you think of the Red Sox bullpen?" mean they can invade your privacy beyond any reasonable expectation?
posted by allen.spaulding at 9:25 PM on July 24, 2010 [9 favorites]


and then alligators devour them while they're burning alive.
Do the alligators get protective gear? I would hate to see large carnivorous reptiles get badly burned while devouring lower reptiles, however delicious the barbeque may be.
posted by Cold Lurkey at 9:26 PM on July 24, 2010 [3 favorites]


I'm not sure you're thinking this one all the way through.

i don't really think that's apples to apples.
posted by nadawi at 9:27 PM on July 24, 2010 [2 favorites]


How is that people still cannot make the distinction between knowing what something is about and being assaulted? Also, I can't believe you just said "not know how serious to take her objections". Leaving aside the whole 'no means no' thing, SHE DID NOT SIGN THE CONSENT FORM! Meaning, her objection seems pretty clear.

Well, people are being asked to make that distinction and decide a case, and in order to make it fairly you have to see the evidence. I have not seen the evidence. Generally, if a woman says that she had her top pulled down against her will, then yeah, that's assault. But this is not a general case: This is somebody going knowingly to an event where the presumption is that women will expose themselves. Could she have objected in a way that seemed merely playful to having her top pulled down, in such an instance? I think she could have; evidently the court thought so, or something like that, and without seeing what they saw I can't make a judgment. There is ample reason for the plaintiff to pursue the case, in the absence of wrongdoing: The event is being held by a company that is an easy target for litigation, and the company has a whole lot of money, and they might have as easily settled. And the company fucked up by not ensuring that everyone featured in its video signed a consent form, which I think means they should have lost the case right there. Because I think the company is made up scum, I think it would be great if they lost five million dollars, or fifty million, or everything. But if the question is whether she was really exposed against her will, I do not know, and I don't know how you know either.
posted by kittens for breakfast at 9:31 PM on July 24, 2010 [8 favorites]


Yes, and I'm sure they had those there. However, I don't think (or I didn't before this) that you could consent to assault simply by being there, regardless of what the signs say.

I think the underlying issue is that she consented to having herself filmed at this event by being there, and then an assault occured that GGW did not commit, but which they filmed and profitted from it. Scummy behavior? Hell yes it is, but the paparazzi are very similar in how they exploit people in vunerable public moments and they get away with it.
posted by Menthol at 9:31 PM on July 24, 2010 [7 favorites]


Ok how's this for apples to apples. Let's say you are at GGW and you get filmed flashing your taytas and you sign the consent form. Then you have like 10 ice teas and you have to really take a piss. So you go into the bathroom and lo and behold there's a camera in the toilet. So now they have video, close up, of you pissing ice tea into some shitty bar's crapper. So they ask you to sign the consent again. And you say no. But they broadcast it anyway. What say you about that? Does the 'consent to be filmed' cover your urethra?
posted by spicynuts at 9:33 PM on July 24, 2010 [2 favorites]


i don't really think that's apples to apples

I don't really think this is responsive. Consent to be filmed != consent to be filmed topless. Even moreso, it most certainly does not mean consent to be filmed while someone takes your top off against her will. Even if she had planned to take her top off, that doesn't matter, because this is footage of her being violated in a manner to which she did not consent.

And to some people, having footage of your naked body sold to the public against your will (including family members, colleagues, friends, who knows who's seen you naked?) is way worse than having your identity stolen. She was denied the right to choose who sees her naked and how. That's pretty basic, apples aside.
posted by allen.spaulding at 9:34 PM on July 24, 2010 [19 favorites]


I think the underlying issue is that she consented to having herself filmed at this event by being there, and then an assault occured that GGW did not commit, but which they filmed and profitted from it.

Ah. That's actually an interesting perspective. But that would have to assume that GGW is a news gathering organization, no? But that's a good point.
posted by spicynuts at 9:35 PM on July 24, 2010


No sentence that starts with "bitch please" ever ends on an intelligent note.
posted by Astro Zombie at 9:37 PM on July 24, 2010 [19 favorites]


can i see the camera in the toilet? because if i can, i'm probably not pissing there and if i can't, we're discussing hidden cameras which i don't think anyone is saying were used here.

i do not ethically or morally defend GGW. i think they're assholes and i wish everyone would stop going to their events and buying their crap. but, if they had a catchall "filming, by entering you consent to be filmed" or whatever (which is how they did it when they came to the town i lived in), then i think you've consented to being filmed. i don't think she consented to have her top pulled down, but i don't think you can hold GGW guilty for that, especially since she didn't file an assault claim against the person who pulled her top down.
posted by nadawi at 9:39 PM on July 24, 2010 [4 favorites]


Isn't one of the drawbacks of trial by jury that juries will sometimes make crazy decisions? Time for an appeal.
posted by KokuRyu at 9:39 PM on July 24, 2010


Jenna's making a hot-and-bothered... I dunno, but for the sake of argument let's call it "moral" "point," not a legal one. It's not relevant to this conversation.

I guarantee this came down to jury selection, and that the GGW legal team was probably just a little bit better than whoever she hired in St Louis to represent her. That said, breaking this down...

1. She'd definitely have a cause of action for battery against whoever pulled her top down. That's pretty much beyond question.

2. GGW will have blanket releases papering the bar, stating that by being on the premises one is giving consent for their image to be used by GGW. If her top had remained on and GGW used the footage, she'd have no leg to stand on. She gave her consent by being there.*

So the question then becomes one of whether that consent becomes invalid with either A. the battery, or B., her vocal refusal to take her top off. Or the combination of the two.

If the assaulting woman worked for Joe Francis or was goaded explicitly by GGW to pull the plaintiff's top down (which would surprise precisely no one) then any sensible jury should certainly award the Plaintiff both money damages and an injunction to stop any further sales of the video with her image in them.

If she was just a random woman acting randomly, however, then the issue goes into a part of law which I sadly don't know very well, but none of the major areas of Defamation or Invasion of Privacy quite fit here. There's no "falsehood" at play, so there's no Libel, Slander, or False Light Publicity. Appropriation of Likeness only applies to promotional materials, and consent could still work as a defense. Invasion of Seclusion doesn't work, because the attack happened in public, for one, and the tort isn't actually about the publication of anything at all - if this were the claim than filming and not using the footage in the final video would be equally bad - since the only claim mentioned in any of the stories is "damage to reputation," that doesn't seem to be what we're looking at here.

The only one that comes close is Publicity of Private Facts, but that's tricky on a number of levels. For one, it's traditionally about "facts," like sexual preference or health status or the like. Secondly, again, the attack in a public place where those present did in fact tacitly consent to their being filmed.

"Damage to reputation" isn't generally a tort by itself, though I don't have any idea what the specifics of the defamation/privacy laws are in Missouri. But from what we have here, the question again comes back to whether her refusal to show her breasts to the cameras represents a revocation of consent, and whether her consent can be revoked conditionally as such.

I would like to believe that it can be. I would like to see Joe Francis sued into bankruptcy. And I would sure-as-hell like to believe that a woman could be protected from having her own sexual assault published by someone else for profit against her will. But laws are tricky and sometimes do things we don't intend for them to do. And juries are oftentimes ignorant and biased and make choices based upon deciding that someone was asking for it based on just being where they were.

I hope that this goes to the appellate level, so that consent can be better defined, so that a blanket release doesn't equal consent for everything, although come to think of it that could cause a lot of problems too.

(Yes I have been studying for the bar all summer, why do you ask? I sincerely hope that an actually knowledgeable lawyer like allen.spaulding will prove everything I've said wrong, because that would mean at least a theoretically better world than what this case has presented.)

*I don't have proof of the blanket releases, but it's universal practice for anyone in the film and tv industry, and if GGW weren't doing this they'd have been sued into oblivion by now.
posted by Navelgazer at 9:40 PM on July 24, 2010 [53 favorites]


and yeah, menthol said it better than me.


I think the underlying issue is that she consented to having herself filmed at this event by being there, and then an assault occured that GGW did not commit, but which they filmed and profitted from it.

posted by nadawi at 9:40 PM on July 24, 2010


Nadawi: In cases like this it would be really useful to actually see the legal documents, but I would have thought that she should have sued GGW for inciting an assault. Then she could have argued that her damage was a natural consequence of the assault and therefore she deserves a high level of compensation for what would otherwise be a relatively-minor breach of her privacy and dignity. But maybe that argument doesn't work - I can see that people could use it against journalists: "I can't restrain the Washington Post from publication, so I'm suing them for encouraging a felonious breach of duty".
posted by Joe in Australia at 9:45 PM on July 24, 2010


Could she have objected in a way that seemed merely playful to having her top pulled down, in such an instance? I think she could have;.

and i'd like to state for the record that i in no way align my opinions with this line of thought. i absolutely think no means no unless you have a safe word. i just don't think the jury was deciding if it was assault, just if she consented to be filmed and legally GGW has the right to publish those tapes.
posted by nadawi at 9:46 PM on July 24, 2010


Navelgazer said it much better than me. Good luck with your studies!
posted by Joe in Australia at 9:48 PM on July 24, 2010 [1 favorite]


WTF. Talk about "my fault, I'm female."
posted by headnsouth at 9:49 PM on July 24, 2010 [3 favorites]


Joe in Australia - GGW and joe francis have been sued a lot and brought up on criminal charges here and there. i think that avenue has already been traveled down and it didn't get anywhere.

i think it would have had more of a chance if the victim had charged the other woman with assault. of course, that gets to the other difficult part of the judicial system where sexual assault cases return not guilty seeming too often.
posted by nadawi at 9:49 PM on July 24, 2010


I'm no lawyer, but I suspect the case ran as follows:
* Signs were posted saying something along the lines of "FILMING IN PROGRESS, BY ENTERING YOU CONSENT TO BE FILMED".
* Plaintiff enters premises, thereby giving implied consent.
* A non-employee of GGW assaults plaintiff, cameras capture the event.

Crucially, the lawsuit was not about the assault but the footage. An excellent case could have been made against the assailant, but that's not who the defendant in this case is. While reprehensible in any number of ways, GGW is in the clear from a legal standpoint.

Yes, this is a terrible situation, but people getting up in arms about this are doing so for the wrong reasons. This is not the jury saying "she was asking for it" - again, the lawsuit is not about the assault.

Consider, for a moment, the legal ramifications of the opposite ruling... do we really want interviewees, for example, to be able to retroactively revoke their consent to a recorded interview if the interview doesn't go as they'd like?
posted by NMcCoy at 9:51 PM on July 24, 2010 [23 favorites]


I'm curious if anyone here thinks the actual footage of what happened may have been pertinent to how the jury came to their conclusion or at least in part? Or maybe the footage may actually show something that the hoppita-moppita here can't justify?
posted by P.o.B. at 9:52 PM on July 24, 2010


Navelgazer - sounds like you're ready for the bar. Your analysis is solid, but as you know, state law varies widely enough that there may be MO specific torts available. My guess is that she sued under some state equivalent of "wrongful appropriation of likeness" that isn't limited just to advertisements or endorsements. After all, GGW is a commercial enterprise and some states may extend the tort to cover more than just promotional materials. I'd also assume the lawyer through in IIED claims. Watch those issue spotters and good luck week.

Disclaimer: author is nowhere near as knowledgeable as Navelgazer believes.
posted by allen.spaulding at 9:55 PM on July 24, 2010 [10 favorites]


ack. "threw in"
Disclaimer: told you.
posted by allen.spaulding at 9:57 PM on July 24, 2010 [1 favorite]


NMcCoy: I don't entirely disagree, but I think folks would be fine to the extent that the record is of the interviewee being the victim of a crime. No need to create incentives for crimes or multiply their harm, especially where one of the chief harms from the crime is its the public nature of the victim's humiliation.
posted by Marty Marx at 9:57 PM on July 24, 2010


Unfortunately for everyone jumping to the "jury concluded she was asking for it, this is just like a rape case" analogy... the analogy doesn't hold up. As a few folks have noted, the crucial issue here seems to be the question of whether she consented to be filmed, and it's hard to make an argument that she was unaware of the filming or that she did not consent to it. What she did not consent to was an act of assault, and the person who assaulted her can and should be prosecuted for it.

As to distributing the recording of what happened or profiting from it, well... recordings of crimes are quite frequently distributed and profited from, by everyone from news outlets to "World's Dumbest Criminals"-type shows on cable networks. If you're not engaged in committing a crime, but happen to catch a crime on film, you may be required to assist police in their investigation, but (AFAIK) your filming in itself does not break the law and you're not automatically forbidden to use that recording.
posted by ubernostrum at 10:03 PM on July 24, 2010 [4 favorites]


There are people who buy Girls Gone Wild videos and keep this company in business.

This keeps me up at night.
posted by Joey Michaels at 10:05 PM on July 24, 2010 [12 favorites]


and i'd like to state for the record that i in no way align my opinions with this line of thought. i absolutely think no means no unless you have a safe word.

It would certainly mean no if it were my company that were potentially liable, I can tell you that much. That there is any room for doubt at all says a lot about GGW, to my mind. But if a jury is forced to sort out meaning from video of the incident (which I'm not entirely clear they were), then I would think that laughing and smiling and not-exactly-pulling-away might be indicators that the plaintiff did not seriously object to what happened. There are other indicators that might make it seem that she did indeed seriously object. Like I said, I have no clue what that video looked like. But I do know that the finding was for (a very unpopular) defendant, one that tends not to look good in situations like this one, and that makes me wonder. I don't think there's anything mutually exclusive about the idea that GGW is a sleazy company that shouldn't exist and the idea that someone might pursue a lawsuit against them under false pretenses in order to get amazingly rich.
posted by kittens for breakfast at 10:07 PM on July 24, 2010


automatically forbidden to use that recording. != profiting from it.

And if there is a television show out there called world's most identifiable victims of crimes caught on videotape I'd be curious to see their legal issues.

To say the question is about consent to being filmed ignores the distinction between consenting to being filmed and consenting to being filmed naked. Many people would do the former and not the latter.

It's totally unclear to me what the law is regarding the rights of companies that posses footage where intermediaries forcibly take people who consent to be filmed and turn them into people being filmed naked. As far as what the law should be regarding companies that possess footage of individuals who did not consent to be filmed naked and who seek to profit from that footage without consent - I think it's pretty clear.
posted by allen.spaulding at 10:10 PM on July 24, 2010 [4 favorites]


Sounds like the jury got this one right. From one of the linked news stories: "Told of [the jury's] reasoning, the tearful [plaintiff] said, 'I was having fun until my top was pulled off. And now this thing is out there for the world to see forever.'"

It really does sound like GGW could've reasonably assumed that she had consented to being filmed. She was having fun being filmed!
posted by planet at 10:12 PM on July 24, 2010


allen.spaulding: exactly (about consent, not about my being ready for the bar, which I am not.)

I compare this to the Borat scandal, with the South Carolina kids who got drunk and said all sorts of racist shit that hurt their reputations - there were releases, the frat boys were under their own power, and I see no legal or moral reason to protect them there.

On the other hand, there is a moral reason to protect Jane Doe here, even if the legal reason doesn't exist yet. Again, hopefully this will be appealed and MO, at least, will clarify what consent means in situations like this and make the world a little better. (Jane Doe wouldn't get her damages in that instance, most likely, but would hopefully at least get the injunction.)

Anyway, it makes sense, and is fully reasonable and viable to carve out a consent-exception in the case of sexual assault, or to carve out a privacy category in the case of nudity. These are things which should be actionable even if they currently are not.
posted by Navelgazer at 10:18 PM on July 24, 2010


Has anyone seen a description of what she did after her shirt got pulled down? How did she react? Did she tell the GGW people anything?
posted by andoatnp at 10:18 PM on July 24, 2010


I am male. If I attended one of these sleazefests, and somebody pulled my pants down and I was filmed and it ended up on a DVD, I would sue them until they couldn't walk in a straight line, burn their bus and salt their fields.
posted by mecran01 at 10:20 PM on July 24, 2010 [2 favorites]


I've never seen those "IF YOU'RE HERE YOU CONSENT" posters in my life. Maybe they just don't use them in Canada. Weird. Which makes me wonder: are illiterate Americans or non-English-reading Americans not entitled to their privacy?
posted by dobbs at 10:32 PM on July 24, 2010


But while I can sort of make sense of that argument, this is a video of sexual assault, made many times worse by Girls Gone Wild -- who, to mince no words, make sexual assault their business model.

Now hang on. Clearly the girl in question overrode implied consent with explicit nonconsent, but saying a woman can't consent to flashing the camera and being on GGW is pretty insulting.
posted by effugas at 10:45 PM on July 24, 2010


dobbs, have you ever seen a GGW event? they are impossible to mistake. illiterate and non-english- reading americans could still suss [nsfw] this out, one would think.
posted by nadawi at 10:48 PM on July 24, 2010 [1 favorite]


dobbs, they do use them in Canada.
They were up all over UBC when they were filming some tv show there a few years ago.
I think they wanted a crowd without paying for extras.
posted by Iax at 10:49 PM on July 24, 2010


Stirring shit up.
posted by Brocktoon at 11:11 PM on July 24, 2010 [1 favorite]


There are people who buy Girls Gone Wild videos and keep this company in business. This keeps me up at night.

Seriously. I've seen one or two GGWs, and they are BOOOOOORING. I mean seriously, I can get porn. Why would I want to watch this weak-sauce bullshit?
posted by Saxon Kane at 11:20 PM on July 24, 2010 [4 favorites]


If I attended one of these sleazefests, and somebody pulled my pants down and I was filmed and it ended up on a DVD, I would sue them until they couldn't walk in a straight line, burn their bus and salt their fields.
"Doing something I don't like" isn't a cause of action, as it turns out. Don't clog the courts with frivolous lawsuits, thanks!
posted by planet at 11:28 PM on July 24, 2010


Assuming she gave some form of implied consent to be filmed in the first place, I don't see how this video damages her reputation. The most damaging part of the video, I would imagine, is being filmed while dancing on a bar at a GGW event, and it seems fairly well accepted in this threat that she did consent to the filming of that, one way or the other. Being filmed while someone forcibly pulls your top down is embarrassing, awful, maybe traumatizing, but I don't see how it's damaging to your reputation.
posted by Doug at 11:30 PM on July 24, 2010 [2 favorites]


Assuming she gave some form of implied consent to be filmed in the first place, I don't see how this video damages her reputation. The most damaging part of the video, I would imagine, is being filmed while dancing on a bar at a GGW event, and it seems fairly well accepted in this threat that she did consent to the filming of that, one way or the other. Being filmed while someone forcibly pulls your top down is embarrassing, awful, maybe traumatizing, but I don't see how it's damaging to your reputation.

Doug, I have very limited legal knowledge but I think you've made a great point here. Had she removed her own top and then GGW released the footage of that without her consent, that could conceivably have "damaged" her reputation, as in given her the reputation of someone who takes her shirt off in public, I suppose.

But! If the video is edited in such a way as to make it appear that she's "enjoying" having her top pulled down by this random woman (when in fact she wasn't enjoying it), then that seems like a great example of "damaging one's reputation," IF that is not in fact the way it happened. So this may be more a matter of how she was represented in the distributed videos.
posted by deep thought sunstar at 11:57 PM on July 24, 2010


effugas: I didn't say that women can't consent to being on GGW. I said that GGW's business model is predicated on sexual assault. There have been a number of stories about GGW and Joe Francis (Marisa linked to one) being involved in similar scenarios, including getting "consent" from minors. And if GGW is filming at a bar and wants to film someone outside of the original location, the "consent" is going to be affected by inebriation. And setting aside the problems with actual consent, the commercials pitch the fantasy of catching girls doing things they might not normally do (and might later regret).

So, sure, it's possible to consent to be filmed topless, but GGW makes its films by discarding concern for robust, enthusiastic consent.
posted by Marty Marx at 12:17 AM on July 25, 2010 [2 favorites]


I think the point comes down to GGW publicizing and profiting from sexual assault, regardless of whether or not Jane Doe agreed to be filmed dancing at the bar.

If you agree to act in a television show, and are raped while the cameras are running, it would be immoral for the television company to release that footage without your consent.

Likewise, Jane Doe didn't give consent to be exposed while the cameras were running, so the issue of whether or not she gave consent for the cameras to be on her in the first place seems irrelevant.
posted by karminai at 12:41 AM on July 25, 2010 [1 favorite]


MetaFilter: It's like watching prairie dogs scurry around a trash dump.
posted by dancestoblue at 12:44 AM on July 25, 2010


I've never seen those "IF YOU'RE HERE YOU CONSENT" posters in my life. Maybe they just don't use them in Canada. Weird. Which makes me wonder: are illiterate Americans or non-English-reading Americans not entitled to their privacy?

I've seen posters a few times at gigs, but I see them almost invariably on concert tickets. "By entering the venue, you consent to being recorded" (even though at most gigs, no-one is recording). This is in the UK, and also New Zealand. Interesting point about people unable to read the signs, though.

And thanks to navelgazer and Allan.Spaulding who said everything I could think of to say (only with actual law-talking behind it).
posted by Infinite Jest at 1:51 AM on July 25, 2010


Remember that ski bum in Vail who got caught pants down on a chairlift, and the photo was posted on the Smoking Gun and then everywhere else? I think that's a fascinating example that is just similar enough to consider the vast differences in the two cases. Here's the MeFi thread about it -- it's mostly jokes about shrinkage. Compare the titles: "She said no, but I could tell she wanted to" versus "Skier suffers exposure get it." Lot more puns in the other thread. But for the most part, when it happened, everybody seemed pretty clear that Vail would be legally responsible, not the guy who was trying to sell the photographs.

Then it turned out that the guy who took the photographs was actually working for a private photography company that took photos of people getting off chairlifts, on the clock, and they immediately fired him and refused to release the pictures (... although they're still easily available all over the internet...).

I won't draw any major conclusions, but I do think the tone of the discussion because of the differences in gender and parties involved (upscale ski resort vs. GGW) are interesting. OF COURSE the biggest difference is that some asshole did not deliberately pants the skier, but even that is interesting -- I suspect if the skier had been female, there would have been a similar tone in thread (lots of jokes), but the fact that there was human agency behind the St. Louis woman's exposure, somehow that transforms it into truly embarrassing and even shameful. I guess the way we talk about it has as much consequence for the victim as anything.
posted by one_bean at 2:01 AM on July 25, 2010 [2 favorites]


Message: If you don't agree with our ideas of right and wrong (dancing in a club where breasts are bare) then we will squash your stupid objections with our Neanderthal clubs.

After all: I always heard that Missouri was the 'Show Me' State.
posted by Twang at 2:34 AM on July 25, 2010


I'd imagine that GGW has the obligation to retain records that every participant is over the age of 18, just like any other porn site, right? If so, they'd presumably do this by bouncers scanning people's ids before entry. All that starts sounding more like implied consent, way more than nathancaswell's Jenna quote.

You should however have the ability to withdraw your implied consent. GGW's editors should have a stack of photographs of girls who boobs get skipped over because they retracted their consent after the party. I'd expect that activities like physical violence implicitly withdraws implied consent, of course. And similarly GGW should lose implied consent if they edit out her obvious objections.

I'd therefore expect the case turned on "How well did GGW create implied consent?" and "Did she explicitly or implicitly retract her implied consent during the event?"
posted by jeffburdges at 3:10 AM on July 25, 2010


It seems like this was just a question of whether or not she consented to being filmed, not whether or not she consented to having her shirt pulled down.
If you get interviewed by the local news for a basic man-on-the-street question, and they decide to broadcast your social security number, banking information and passwords, and display hundreds of private emails they get from a third-party who hacked into your computer, wouldn't you be mad? Does giving consent to answer the question "what do you think of the Red Sox bullpen?" mean they can invade your privacy beyond any reasonable expectation?
Except that didn't happen. It would be more like if you being filmed and someone ran in frame and started screaming all that stuff about you. Except you were at some kind of private data sharing convention.
Consent to be filmed != consent to be filmed topless.
is that an actual legal principle, or just your personal oppinion about what the law should say?
I am male. If I attended one of these sleazefests, and somebody pulled my pants down and I was filmed and it ended up on a DVD, I would sue them until they couldn't walk in a straight line, burn their bus and salt their fields.
They used to have a "boys gone wild" thing. One of the guys featured in it broken into Joe Francis' house and forced him to masturbate on camera at gunpoint.
posted by delmoi at 3:24 AM on July 25, 2010


You're the cutest girl that I ever did see
I really love your peaches wanna shake your tree


~Steve Miller

But no still means no. Joe Francis is a weasel.
posted by bwg at 4:03 AM on July 25, 2010


As with so many other cases, people are jumbling up the laws. Now, I am making an assumption here: that the laws for video photography are the same for still photography. I think they are. At least as they apply here.

The facts, as I read them, are this: she consented to be filmed. Implicitly, by going into a bar where GGW was filming, and expressly by clowning around for the camera. As mentioned above, this consent applies to that particular moment or scene. Gaping for the camera while dancing on the bar doesn't mean she consents to being filmed when she leaves the bar and goes to the bathroom. But it does mean that while she is in front of the camera, she consents to a recording being made of what happens. What little legal right to privacy one might have while dancing on a bar for cameras, she gave up by acknowledging the cameras were there and not leaving.

Now, I'm pretty sure that like photography, video is owned outright by the videographer unless some other arrangement is made. The videographer can do what they want with it. They don't NEED a release to use the film as they wish- they just get them for their own protection, or to gain the consent of the subject.

Then, at some point, someone assaulted her by pulling down her shirt.

While GGW acted reprehensibly in selling that film, I don't believe they acted illegally. They still owned the film. They took no action(*) that changed the circumstances of the filming.

Furthermore, how is being the victim of an assault damaging to one's reputation? Reputation is what other people think of you based on your actions. She didn't act to show her breasts, in fact, she did what a reasonable person would do and said no and covered herself up and (presumably?) left the scene. She did not consent to the assault, clearly. She wasn't "asking for it" as breathlessly implied above. But she DID consent to be filmed.

So GGW, as scummy as they are, did not deserve to lose this case. Their actions didn't damage her reputation, nor did they violate her privacy. The lesson is that when you let scumbags film you acting like an idiot, they are probably going to be scumbags about it.

What she should have done is contact a lawyer the day after the filming and find a way to revoke her consent. And maybe the cops to report the assault...?

(*) Unless it can be shown that the person who pulled the shirt down was an agent of GGW. Which wouldn't be surprising. But as far as I can tell, she wasn't able to show that.
posted by gjc at 4:49 AM on July 25, 2010 [5 favorites]


Not entirely sure I understand the outrage here. Yes, "blaming the victim" as such is wrong, I'm uncomfortable with the extent to which that seems to be used to maintain that we cannot ascribe any responsibility to people who do stupid things.

The girl was dancing at a Girls Gone Wild party, and her behavior on tape was such that eleven of twelve jurors thought that her conduct was insufficient, given the circumstances, to establish that she did not actually want to expose herself.

Should the person who exposed her have done so? No.

Should the footage have been included? Probably not.

Should she have even gone to the party if she didn't want something like this to happen? No!

It just isn't reasonable to assume that a person can engage in any conduct they want and be held completely free from responsibility for any resulting consequences. Surely we can find some balance between not blaming women for the bad things that happen to them and giving carte blanche to engage in objectively stupid behavior. If you don't want to get killed while driving a stock car, you don't drive a stock car. If you don't want to get exposed on a GGW shoot, you don't go to a GGW shoot, and you leave as soon as you realize one is happening.

Three other things. One, she isn't suing the person who assaulted her, the only party in the entire situation who has obviously committed some kind of easily identifiable tort. Presumably, GGW can identify her, as they've got records, but guess what? She's judgment proof. GGW, on the other hand, has deep pockets, making a $5 million judgment even possible.

Two, it's entirely possible that no one other than the one guy who spotted her in the video would have ever known that it was her. It isn't like GGW posts credits or anything. But by bringing this case, she has made her inclusion into national news.

Three, even if she hadn't given consent to having her top removed, she did give consent to be filmed just by being there. If you're in a public place--and she was--there's no reasonable expectation of privacy, i.e. you can be filmed without anyone having to ask your permission. If you don't want them to do that, you need to either 1) tell them that they can't use your footage, and/or 2) leave. She didn't do either of those things. So the use of the footage is really not an issue here. They'd have sold just as many videos regardless of what did or didn't happen to her top, and she has offered no objections to having appeared in the video as such. So it isn't like she can sue for commercial sue of her image, because she did effectively consent to that.

Those three things go a long way towards convincing me that this has a lot less to do with her attempting to maintain her pristine reputation than with trying to pick up a quick couple of million. Which is just about as trashy as the whole GGW concept itself.
posted by valkyryn at 4:58 AM on July 25, 2010 [3 favorites]


Also, due to lack of preview, what gjc said.
posted by valkyryn at 5:00 AM on July 25, 2010


I forgot part of my point: there probably ought to be a law against this sort of consent-stretching.(*) But that wasn't this jury's problem to address. Even if they did, it would get appealed and reversed down most likely, since GGW acted within the law as it existed at the time.

No means no. Of course. But the person who violated this is the person who did the assault, not GGW.


(*) On the other hand, maybe not. Might be a first amendment violation. What if, for example, a videographer gets consent to film a "day in the life of Councilman Jones" and in the process of that, catches someone offering a bribe to Councilman Jones, which he of course refuses to take and says no. Should Councilman Jones have the right to take back his consent because it is embarrassing to him? Whether he did anything wrong or not?
posted by gjc at 5:02 AM on July 25, 2010


If you get interviewed by the local news for a basic man-on-the-street question, and they decide to broadcast your social security number, banking information and passwords, and display hundreds of private emails they get from a third-party who hacked into your computer, wouldn't you be mad?

What say you about that? Does the 'consent to be filmed' cover your urethra?

If I attended one of these sleazefests, and somebody pulled my pants down and I was filmed and it ended up on a DVD, I would sue them until they couldn't walk in a straight line, burn their bus and salt their fields.

The metaphor police need to declare this whole thread a crime scene.
posted by fleacircus at 5:07 AM on July 25, 2010 [3 favorites]


Not entirely sure I understand the outrage here.

Footage of a woman being sexually assaulted was sold, for profit, for people to masturbate to. Do you honestly not understand the outrage over that, regardless of whether it was legal or not? Do you honestly not understand the outrage over the idea that it would be legal? I am honestly wondering.
posted by Ashley801 at 5:09 AM on July 25, 2010 [12 favorites]


Serious question, Valkyryn: do you believe it is reasonable for anyone who happens to film a rape or sexual assault in a public place to distribute that film as porn, for profit, as long as the woman was in public and doing something "stupid" where she should have expected to be sexually assaulted? Maybe walking alone in a bad neighborhood, or riding the subway alone at night. Would you consider that to be undeserving of outrage?

What about being stupid enough to commit a crime and be sent to prison? Should prisons be allowed to release DVDs of prison rapes, for profit?
posted by Ashley801 at 5:24 AM on July 25, 2010 [2 favorites]


you'd think a company whose stock and trade is so clearly near the line and would so obviously get hit with a lot of law suits would at least try to make an effort to protect themselves by being rigorous with the consent forms.

Or by moving the line (in the public perception, at least) by successfully defending one of those lawsuits. Also, for them, there is no bad publicity. A lawsuit that makes the news means money to them, regardless of who wins it. There's a continuously fresh supply of teenaged boys who may not be aware of the GGW product. Do they still advertise on late-night cable?
posted by Kirth Gerson at 5:27 AM on July 25, 2010


What I don't understand is, if she gave her consent to being filmed just by being there, then why do they have people sign consent forms? Also, are you not allowed to change your mind and say at some point "I don't want to be filmed anymore"?
posted by Secret Life of Gravy at 5:34 AM on July 25, 2010


I wonder if anybody realizes that the only places that even mention assault is Jezebel and here?
posted by P.o.B. at 5:39 AM on July 25, 2010 [2 favorites]


I'd just like to point out that unless you've seen the footage and all the evidence that the jury did, you really don't a good basis for determining whether this verdict was appropriate or not. And what at least some people in this thread are doing is letting their disgust at the existence of Joe Francis and GGW cloud their assessment of what they think happened. But reprehensibility of the plaintiff / defendant has nothing (usually) relevant to say about the actual liability of the defendant. Just like a woman being promiscuous is not necessarily relevant to whether she was raped, GGW's vileness as a company is not really relevant to whether, in this case, the woman in question gave implied consent to the use of her image.

What if, after saying, "no" and getting her top pulled down, Jane Doe spent the next 45 minutes dancing in front of the camera with her top down, pulling her underwear off, and danced completely naked while making out with other naked women? Is there still no implied consent? Are her initial protests still valid?
posted by shen1138 at 5:42 AM on July 25, 2010 [2 favorites]


Serious question, Valkyryn: do you believe it is reasonable for anyone who happens to film a rape or sexual assault in a public place to distribute that film as porn, for profit, as long as the woman was in public and doing something "stupid"

You have to add facts to the case, facts for which we have no evidence, to conclude that a sexual assault occurred. In the absence of such facts or evidence for them, I don't need to answer that question. If you want to be outraged about a hypothetical, you're more than welcome to do so, but I don't see any particular need to engage your straw men.

One of the elements of assault is that the touching must be not permitted at the time when it occurs. You aren't allowed to go back and change your mind about what you wanted. The evidence that the plaintiff did not want this to happen when it actually happened is equivocal at best. I don't see why we are morally obligated to believe her account of it on her word alone.
posted by valkyryn at 5:51 AM on July 25, 2010


What I don't understand is, if she gave her consent to being filmed just by being there, then why do they have people sign consent forms?

So cases like this one don't happen. If you've got a signed writing, that's awesome evidence, and you can probably win on summary judgment. In the absence of such a writing, you have to litigate the facts, which is 1) expensive, 2) time consuming, and 3) uncertain. Signed writings are not necessary to establish most contracts, but they're damned useful even when they aren't required.
posted by valkyryn at 5:53 AM on July 25, 2010 [2 favorites]


Evidently this where the "damaged her reputation" stance came from:
The woman, identified in court files as Jane Doe, was 20 when she went to the former Rum Jungle bar in May 2004 and was filmed by a "Girls Gone Wild" video photographer. Now married, the mother of two girls and living in the St. Charles area, Doe sued in 2008 after a friend of her husband's reported that she was in one of the videos.
From the sounds of it, things didn't go well with her husband or their social circle.
posted by new brand day at 6:10 AM on July 25, 2010 [1 favorite]


The evidence that the plaintiff did not want this to happen when it actually happened is equivocal at best. I don't see why we are morally obligated to believe her account of it on her word alone.

Jesus christ, read the fucking article.

"Stephen Evans of St. Louis, her lawyer, argued Thursday that Doe never gave consent — and even could be heard in original footage saying "no" when asked to show her breasts shortly before another woman suddenly pulled Doe's top down.

No means no, for fuck's sake.
posted by elizardbits at 6:26 AM on July 25, 2010 [9 favorites]


Ah, She knew that she was being a woman. Through her actions of existing. I see. That is what she was doing.

If you're trying to say people wouldn't accept this if it had happened to a man, that doesn't quite work, does it? No one would care if a man's chest were shown.
posted by Jaltcoh at 6:35 AM on July 25, 2010


.

How the fuck does "implied consent" trump any, explicitly-stated NON-consent???
posted by DavidandConquer at 6:36 AM on July 25, 2010


is this the end of the road for this lawsuit or is there the possibility of an appeal? because she absolutely needs to do that.
posted by krautland at 6:37 AM on July 25, 2010


Jesus christ, read the fucking article.

Did you read the part where the juror, someone who actually saw the video, said
"She was really playing to the camera."
Maybe that should have been in the post instead of being redacted for a spousal rape link.
posted by P.o.B. at 6:41 AM on July 25, 2010 [2 favorites]


If you're trying to say people wouldn't accept this if it had happened to a man, that doesn't quite work, does it? No one would care if a man's chest were shown.

I am not sure strictly literally parallels work here. How about if a man's ass or cock was pulled out.
posted by Astro Zombie at 6:52 AM on July 25, 2010


Serious question, Valkyryn: do you believe it is reasonable for anyone who happens to film a rape or sexual assault in a public place to distribute that film as porn, for profit, as long as the woman was in public and doing something "stupid"

You have to add facts to the case, facts for which we have no evidence, to conclude that a sexual assault occurred. In the absence of such facts or evidence for them, I don't need to answer that question. If you want to be outraged about a hypothetical, you're more than welcome to do so, but I don't see any particular need to engage your straw men.


In your own post, you said "One, she isn't suing the person who assaulted her, the only party in the entire situation who has obviously committed some kind of easily identifiable tort."

So, when you're making your own point, you feel 100% comfortable saying the woman assaulted her, that in fact, she obviously assaulted her. But when I'm asking my question, suddenly we need to add all these facts (for which there are no evidence, of course) to conclude the same thing? Come on.

Also, just because the logical endpoints of your arguments are appalling and extreme sounding, that doesn't make them strawmen. Don't want to engage, don't engage, but don't be disingenuous.
posted by Ashley801 at 6:52 AM on July 25, 2010 [1 favorite]


Astro Zombie: I'm not saying they would be parallel. I'm saying they wouldn't be parallel.

So I just don't think it works to say that people would care about someone's shirt being pulled up if only it happened to a man. The only reason you (we) care about it is because it happened to a woman; no one would care if a man's breasts were shown. (This is not just based on anatomy: it would still be the case even if the man in question had more prominent breasts than the woman in question.)

You're trying to say: "Yeah, but this was really bad, so imagine something bad happening to a man." I understand that. I agree that this was bad. All I'm saying is that the idea of "People don't care because it happened to a woman" seems to have things rather backwards.
posted by Jaltcoh at 7:09 AM on July 25, 2010


Something no one has brought up: Isn't it illegal in many places (It is in Canada) to publish identifying information about a victim of sexual assault? Surely this would count.
posted by If only I had a penguin... at 7:41 AM on July 25, 2010


Something no one has brought up: Isn't it illegal in many places (It is in Canada) to publish identifying information about a victim of sexual assault? Surely this would count.

This seems worth repeating, from P.o.B. above

I wonder if anybody realizes that the only places that even mention assault is Jezebel and here?
posted by umberto at 7:44 AM on July 25, 2010


Something no one has brought up: Isn't it illegal in many places (It is in Canada) to publish identifying information about a victim of sexual assault? Surely this would count.<>

But there was no assault alleged. Surely a legally proven assault (and possibly prosecuted for?) would need to exist to invoke that restriction?

posted by Brockles at 8:00 AM on July 25, 2010


I've seen people arguing that the crime was assault, and that GGW were merely there filming it, or that the woman consented to be filmed, and the fact that she was assaulted and that that was caught on tape is of no consequence (at least, not to GGW). I saw this compared to nude papparazzi photos. That might be a plausible argument if GGW didn't encourage the assault to take place.
posted by outlandishmarxist at 8:07 AM on July 25, 2010 [1 favorite]


Wouldn't participating in a GGW event would be enough to damage a person's reputation, regardless of their nudity or lack thereof. While I am obviously not a lawyer, I would think she'd have a better case for assault against the person who pulled her top down rather than the company who created the event with the explicit intention of filming whatever shenanigans happened there.
posted by Alvy Ampersand at 8:11 AM on July 25, 2010


Wouldn't participating in a GGW event would be enough to damage a person's reputation, regardless of their nudity or lack thereof. While I am obviously not a lawyer, I would think she'd have a better case for assault against the person who pulled her top down rather than the company who created the event with the explicit intention of filming whatever shenanigans happened there.

Oh, she most definitely would. She'd even have the best evidence in the world of the assault, with the GGW videotape. But the girl who pulled down her top probably can't afford to pay nearly as much damages.
posted by kafziel at 8:18 AM on July 25, 2010 [1 favorite]


The girl was dancing at a Girls Gone Wild party, and her behavior on tape was such that eleven of twelve jurors thought that her conduct was insufficient, given the circumstances, to establish that she did not actually want to expose herself.

Only trashy girls go to GGW events, and trashy girls want to take their tops off. Therefore, the plaintiff is trashy and wanted to take her top off.

From the jury foreman in the first link: "Through her actions, she gave implied consent," O'Brien said. "She was really playing to the camera. She knew what she was doing."

"She was asking for it."
posted by jeoc at 8:22 AM on July 25, 2010 [1 favorite]


As a documentary editor, this is great news! Now I can tell all the people I work for about "implied consent." What a load of paperwork this will save us.

Now we just need to get a ruling stating that "off-the-record" really means "implied on-the-record." Andrew Breitbart is probably working on this now.
posted by fungible at 8:43 AM on July 25, 2010 [1 favorite]


Interesting case. I'm (NAL, but) convinced by the argument that GGW is pretty much in the clear, since they didn't commit the assault. Which makes me wonder, what if she had actually been raped? I mean actual bottoms-torn off, held down on the bar and fucked by a big dude while everyone else cheered him on? Would GGW be in the clear to publish that? Really?

Yes, I know that's not exactly what happened and context matters. Still, seems analogous to the "filming consent and the assault were totally seperate issues and responsible parties" argument.
posted by ctmf at 9:14 AM on July 25, 2010


The Missouri Court of Appeals for the Eastern District (which is where St. Louis is) recently recognized false light invasion of privacy in Meyerkord v. Zipatoni [pdf]. The court appeared to adopt the Restatement definition of false light:

"One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed."

In this case, GGW evidently edited the footage to remove the parts where she says "no" or otherwise indicates non-consent. To me, this opens the door to a false light claim. GGW took footage of a sexual assault and made it appear consensual, thus implying that the plaintiff is a woman of looser morals than she is, which would seem to me to qualify as highly offensive, especially given the context of the rest of the video and its sale for profit. Pretty clearly GGW had actual knowledge of the falsity of the publicized matter because it had access to the original footage and was in fact the party doing the editing. It also pretty clearly acted in reckless disregard as to the false light in which the plaintiff would be placed because they've been sued numerous times for this kind of thing, could easily have left out what I'm sure is only a small part of the video, and yet included it anyway.

Since this is a developing area of the law, it seems to me that this case is well placed for an appeal, assuming the plaintiff's attorney included a false light claim or otherwise preserved the issue for appeal.

For those interested, a little more information about the case is available on Missouri's pseudo-PACER-equivalent Case.Net. You can pull up the case there, which is 0822-CC01561 - Jane Doe V Joseph Francis et al. Sadly all you get are the docket entries, not proper copies of any of the filings. No post-trial motions have been filed yet, apparently, so no evidence of an appeal yet.
posted by jedicus at 9:18 AM on July 25, 2010 [9 favorites]


Which makes me wonder, what if she had actually been raped? I mean actual bottoms-torn off, held down on the bar and fucked by a big dude while everyone else cheered him on? Would GGW be in the clear to publish that? Really?

This.
posted by Ashley801 at 9:22 AM on July 25, 2010 [1 favorite]


This is something we haven't really had to worry about before now. What is stopping this from happening? Are we saying it is totally legal?
posted by Ashley801 at 9:24 AM on July 25, 2010


Did you read the part where the juror, someone who actually saw the video, said "She was really playing to the camera."

Yeah, I did, actually. And it doesn't really change how I feel about the situation. Sorry if that makes me irrational or something, but I'm going to go ahead and believe the girl who says she said no and meant it, because otherwise I would have a really hard time living with myself.


On preview: Would GGW be in the clear to publish that? Really?

I rather doubt it, but I don't doubt that that vile poisonous little shit Francis would keep a copy for his own personal use.
posted by elizardbits at 9:31 AM on July 25, 2010


Is it legal to record a crime and then profit from distributing the video? I'm pretty-sure it is.
posted by Civil_Disobedient at 9:53 AM on July 25, 2010


I've tried to comment several times, and it keeps descending into HULK SMASH after a few sentences. Let's leave it at this: our legal system is based upon precedent. Implied consent is a bad precedent. HULK SMASH GRAAAAAR.
posted by honeydew at 9:57 AM on July 25, 2010 [7 favorites]


Is it legal to record a crime and then profit from distributing the video? I'm pretty-sure it is.

I'd like to know the answer to this. My first response is, isn't that what TV news does? Of course, GGW isn't news, but it could be argued that what they're doing is documenting party shenanigans.
posted by roll truck roll at 10:27 AM on July 25, 2010


What really bothers me is that it looks as though another woman engaged in the sexual assault. I'm disturbed this person has not been brought up on criminal charges since the entire incident was filmed.
posted by medea42 at 10:31 AM on July 25, 2010 [2 favorites]


How sad. Does this mean GGW could have profited from the filming no matter what the extent of the sexual assault was?
posted by ersatz at 10:46 AM on July 25, 2010


Wouldn't participating in a GGW event would be enough to damage a person's reputation, regardless of their nudity or lack thereof.

Wouldn't viewing a GGW tape be enough to damage a person's reputation? Interesting how that hasn't seemed to have effected the friend of the husband who brought up that aspect.
posted by new brand day at 10:47 AM on July 25, 2010 [1 favorite]


Wouldn't viewing a GGW tape be enough to damage a person's reputation?

Hm, very interesting point. Normally, I have no problem with any aspect of pornography, from the people who make it to the people who watch it, as long as all parties are consenting adults. But with GGW, I think one of the selling points/attractions is that these girls are often too drunk to make informed decisions, which raises the issue of legitimate consent for the majority of their videos, at least to me.

Yeah, I guess I might have some judgmental things to say about people who enjoy watching that kind of soft-core porn, because I would probably assume that at least some of them like the idea of girls who are too drunk/high to say no.
posted by elizardbits at 11:08 AM on July 25, 2010 [1 favorite]


What really bothers me is that it looks as though another woman engaged in the sexual assault. I'm disturbed this person has not been brought up on criminal charges since the entire incident was filmed.

Does the victim even know who that person was? It might even be too late to file charges or bring a case. This took place years ago, and during that time the victim was unaware the video even existed.

To be honest, I think misogyny and rape culture are so prevalent that it's impossible to separate the law and the jurors from that culture. If the law says that it's legal for someone to profit off of sexual assault, then the law is wrong. The law was built within an oppressive system to serve the needs of an oppressive system. The legislators, enforcers, and adjudicators all work within that system. I think it's better to obey the law than not, but that's about the most respect I have for it at this point. I've spent the last week reading At The Hands of Persons Unknown: The Lynching of Black America. I'm over the law.

GGW isn't just a documentary film company passively recording "shenanigans". They instigate and create the "shenanigans". They have a long history of completely overriding the will of women. I refuse the narrative that women who go to bars or clubs where GGW is filming are responsible for the "shenanigans". In fact, this case has opened my eyes.

I know I used to judge the women who would be in these videos doing all of that "slutty" stuff. But now I have to wonder, I really have to wonder, because now I know the lengths GGW goes to in order to destroy the ability of women to consent. Going after minors, plying girls with alcohol, attempting to coerce women into getting naked and ignoring their refusals. If women in this country were really so eager then why would GGW have to go to these lengths? If there are really so many women who enthusiastically consent to getting topless for the cameras, then why even include the footage of women who didn't? It's a myth that they all just "want it". It's a stereotype of young college-age women, and stereotypes are tools of oppression.

The fact that such a noxious entity is able to flourish in American society, with the explicit and implicit encouragement of the legal system, is an indictment of the society. I don't care about debating the law. The law is a reflection of the society. Tell me what's so good about a society in which this sort of thing can take place.
posted by Danila at 11:30 AM on July 25, 2010 [20 favorites]


My comment got glossed over in a cloud of people saying the exact same thing over and over again, so I'll repeat myself: This is not analogous to news. News reporters do not, as a rule, actively encourage crimes to take place, although they do profit from getting footage of crimes taking place. The argument that she gave her consent to be filmed, an assault happened to take place, and that GGW happened to catch it on film is nonsense.
posted by outlandishmarxist at 11:33 AM on July 25, 2010 [3 favorites]


There's a lot of conflation between the pulling down of the top and the using of the film with the words "implied consent" being thrown around. The case isn't about the sexual assault, it's about the usage of the footage. The "implied consent" being talked about here is for the filming, not the assault itself.
posted by tehloki at 11:51 AM on July 25, 2010


Implied consent to being filmed is not the same as implied consent to being filmed topless. Even when entering a filming area, you have a reasonable expectation that your personal clothed-ness will be under your control. If that's not the case, then that means you would have to have a reasonable expectation of being sexually assaulted at a GGW event. That seems like it would be legally actionable to me.
posted by Zalzidrax at 11:59 AM on July 25, 2010 [1 favorite]


Furthermore, how is being the victim of an assault damaging to one's reputation?

...Seriously? Why do you think so many women who get raped choose not to talk about it? It's painful and can feel incredibly humiliating. Having that assault recorded and publicized for men to masturbate to would be one of the most degrading things I can think of.

Should she have even gone to the party if she didn't want something like this to happen? No!

I'm sorry. That's absolutely ridiculous.
posted by karminai at 12:39 PM on July 25, 2010 [3 favorites]


It's a myth that they all just "want it". It's a stereotype of young college-age women, and stereotypes are tools of oppression.

No, the myth is that the issue is about women "wanting it," where it equals cock. But what about when it equals free booze? What about when it equals attention? You don't think women are attending these parties for the free booze? You don't think they're exposing themselves for attention?

I'm disturbed this person has not been brought up on criminal charges since the entire incident was filmed.

There's no way would you ever get $5 million from the person responsible for the actual assault. Much easier to go after the GGW bogeyman.
posted by Civil_Disobedient at 1:15 PM on July 25, 2010 [1 favorite]


I "apologize" for "using" the "word" "shenanigans" as it generally "connotes" "activities" far more "innocent" than "the" actual practices "of" Girls Gone Wild "and" others "of" their "ilk".
posted by Alvy Ampersand at 1:28 PM on July 25, 2010 [1 favorite]


AZ: "I am not sure strictly literally parallels work here. How about if a man's ass or cock was pulled out."

How about that? Would a man really believe he'd been 'sexually assaulted' if one of his friends pantsed him while drunk at a party? Hell no. I don't think she was even remotely traumatized, but it probably became useful to think of it that way when the possibility of (pinky to lips) five *million* dollars came into play.

I don't think it's responsible to throw the term 'sexual assualt' around in this context. It does a disservice to the people who've actually experienced it. She was a little embarrassed in the initial event, then much more embarrassed when she became a straight-laced wife with kids and her social group found out about it, but she wasn't a victim of a sex crime.
posted by mullingitover at 1:58 PM on July 25, 2010 [1 favorite]


She was a little embarrassed in the initial event, then much more embarrassed when she became a straight-laced wife with kids and her social group found out about it, but she wasn't a victim of a sex crime.

Huh. I wish I had similar mind-reading abilities. Know what I'm thinking right now?

*thinks*

That's right! A whole bag of dicks.
posted by angrycat at 2:02 PM on July 25, 2010 [5 favorites]


Two things I didn't see in the links that I would love to have the answers for: what was the gender of the jury (all male, 50/50, what?)...

WTF?

Having served on three juries (and one where I was appointed jury foreman for a federal trial), I find your implication that gender played a ("the?") motivating factor in the jury's findings to be quite simply insulting. Juries analyse what has been presented to them by both sides, examine the evidence as presented in court and follow the judge's instructions in coming up with their finding. We weren't there. We don't know all of the details of the court room hearing and the deliberation of the jury.
posted by ericb at 2:04 PM on July 25, 2010 [2 favorites]


I think one complicating factor is that there are almost certainly some number of women who would want what happened to her. By that, I mean they want to show their breasts on video but don't want people to think they want to do that. So being able to say no and then have a friend pull your shirt down and flash your breasts would let this type of girl feel naughty or a rush of adrenaline or whatever and she wouldn't have to worry about what people would think of her because it would give the appearance that she didn't want to do it.

Now I absolutely do not think Jane Doe thought that or was doing that. But all the descriptions I read talked about how she said no to showing her breasts herself, and I haven't seen any details of what she did after she got exposed. It doesn't appear that she told the GGW people that she didn't want her breasts exposed and they shouldn't use the footage, although if this did happen someone please point me to an article with more details. If there was clearly filming going on for a GGW video and a general rule said that everything that happened in that bar that night was game for publication I think a woman who is involved in an incident like this has an obligation to tell them she doesn't want the footage used. It doesn't seem like that happened, although I'm also not even sure that she realized the moment was captured on video, as the articles make her seem surprised to find out years later that she was in the video.

And it's worth saying that in general I think GGW is a disgusting enterprise and there should be more shaming of guys who purchase their materials, especially by the other guys who find out about it.
posted by andoatnp at 2:19 PM on July 25, 2010


angrycat: "Huh. I wish I had similar mind-reading abilities. Know what I'm thinking right now?

*thinks*

That's right! A whole bag of dicks."

I figured it went without saying that I'm speculating, but hey, it wouldn't be metafilter if we couldn't be pedantic and rude to each other.
posted by mullingitover at 2:25 PM on July 25, 2010 [1 favorite]


Okay, here comes my sexual assault story.

So, I was sexually assaulted. Although it wasn't filmed, I pressed charges and testified about every little detail in front of a grand jury. It was a big 'ol room full of my fellow Brooklynites.

The sitch was: I was living with a guy, broke up with him and let him live in my apartment while I was staying somewhere else. Should have just kicked him out, but what the hell, I was stupid. Went in to my apartment to get some of my shit. Went in, he was naked and drunk, I should have left immediately, but I was stupid.

Then he went after me. Didn't do any visible damage. The only physical part of me that hurt afterwards were my arms, because I strained every fucking muscle trying to get him off of me.

After the grand jury threw out the case the ADA said to me, "Why didn't you tell us (before I testified) that he was naked?" Why didn't I? I didn't think it was important. Because I was stupid.

Got a call from the guy post-grand jury. He told me that he had told my fellow Brooklynites on the grand jury about every kinky aspect of our sex life pre-break up.

Heard gossip about how people who knew the guy believed that I had made the story about the assault up.

In summary: The pulled muscles in my arms were okay after a week. The shame -- the shame that continues and is so pervasive that I can't describe the event other than to say "sexual assault" -- I can't use any other words to describe what happened, although the words exist -- that shame continues. Because I know that I was stupid in many aspects of this situation, and if I hadn't been stupid, I wouldn't have been violated in a way that made me feel like someone I taken a shit on my soul.

This is why I sympathize with the plaintiff.
posted by angrycat at 2:26 PM on July 25, 2010 [13 favorites]


No means no, for fuck's sake.

That's a good rule of thumb for deciding how to comport one's self in social situations, but it is not, in fact, true. Certainly not in any legal sense of the word.

We haven't seen the tape, either the published version or the unedited version that the plaintiffs presumably obtained via discovery. The only things which seem undisputed are 1) that the plaintiff said that she did not wish to expose herself, 2) that someone else exposed her, 3) that this was caught on tape, and 4) that said tape was published. With those facts alone, we do not have enough evidence to render a verdict for anybody. But since we seem to be in the business of making up facts to suit our personal opinions about the politics of women's sexuality, let's keep at it.

Hypothetical 1: The plaintiff says that she does not wish to expose herself. The plaintiff is then exposed by someone at the bar, immediately stops, covers herself, and leaves, telling the film crew on the way out that she does not want to see that part included any published version. She then calls the police and tells them what happened.

Hypothetical 2: The plaintiff says that she does not wish to expose herself. The plaintiff is then exposed by someone at the bar and proceeds to raise her arms, shake her tits, and go "Woo!" She says nothing to anyone after this about the incident.

Without seeing the evidence that the jury saw, we don't know which one of these happened. It could have been a combination of the two or something entirely different. But does anyone really want to tell me that these two hypotheticals are the same thing? That we should infer the same thing about her intent with respect to consent to being taped in both cases? Because as far as I can tell, the only way one can maintain that position is to somehow treat saying "No" in the context of sexuality as completely different from every other form of human interaction, a proposition which strikes me as inherently silly.

Let's push it one further: Boyfriend and girlfriend are watching a movie on the couch. Boyfriend asks girlfriend for a blowjob. Girlfriend says "Hell no!" Boyfriend, disappointed, says "Okay," and turns back to watching the movie without so much as another word. Girlfriend immediately proceeds to take off boyfriend's pants and suck him off. No means no, right? So this counts as rape, because she said no, right?

Of course not. Intent can be and should be something we can infer from conduct. It would not be reasonable to believe that a defendant in a murder acted in self defense simply because he exclaims "He's coming right for me!" before unloading a clip into an unsuspecting victim. Rather, we infer his intent from his actions and conclude that the killing was cold blooded and pre-meditated.

Hell, there's an entire sexual lifestyle founded on the idea that "No" does not, in fact, always mean "No." Granted, sane people have ways of expressing "Really, no" through the use of safewords and the like, but the idea is there: The word "No" is not the same thing as expressing unequivocal denial or withholding of consent. Like every other human interaction, communication is a holistic thing which requires consideration of the entire context.

Similarly, it is not inherently unreasonable to assume that a girl who is dancing at a GGW shoot with other girls who are exposing themselves doesn't actually mind being taped, regardless of what she says. She was entirely capable of making her intent crystal clear. Instead, from the evidence that the public has, her withholding of consent was equivocal at best.

Those who want to make this some sort of referendum on female sexuality and patriarchal oppression need to find themselves a better set of facts.
posted by valkyryn at 2:27 PM on July 25, 2010 [10 favorites]


At least they didn't charge her with underage drinking.
posted by Tenuki at 2:34 PM on July 25, 2010 [1 favorite]


(to clarify: my story/anger is not meant to apply to legal discussion of intent, which is by its nature difficult, but rather to those who might not really get why the plaintiff would be upset/harmed by what happened, given where she went and what she was doing.)
posted by angrycat at 2:47 PM on July 25, 2010


[few comments removed - I am sorry this thread is tough for people but you really need to go to MetaTalk at the point at which all you have to say is "fuck you"]
posted by jessamyn at 3:00 PM on July 25, 2010


"Intent can be and should be something we can infer from conduct."

Right, and GGW's arc of intent is clear. They make money by testing the brink of bodily consent and non-consent. Under conditions of their making, they captured a violated "no" – violated twice, since it was against being made naked as well as being filmed naked – and they kept rolling. The range of hypotheticals in which her "no" could be fairly inferred as "yes, I dare anyone here to pull my clothes off" is rape-apologetically narrow compared to the range in which her no meant no.

Again, GGW didn't seek clarity or permission from her before they packaged this footage with ostensibly less assaulting scenes and delivered it to a waiting public, with promises of more where that came from. Intent noted.

Danila found the words I couldn't for why breathless outrage is the perfect response to this story, to say nothing of the surrounding analysis. Read all of her post. Absorb it.
posted by Municipal Hare at 3:22 PM on July 25, 2010 [2 favorites]


The insistence of people moving the news item from "woman loses suit over being consensually filmed" to "woman loses suit over sexual assault" seems like a pretty slippery argument to me.
I understand how people could be pissed about this or anything related to Francis. I understand having something so compromising coming back on you is a really messed up thing. I understand this is a really messed up topic for some people.
What nobody here knows is, does the video obviously show the woman being assaulted against her will? And that's the thing, nobody here knows that. Honestly, I do want to know, and I don't care if it she didn't file assault charges at the time or if we can or can't legally define it as assault. I want to know that rather than crowbar it into a discussion to justify being pissy about that douche Francis.
But if all anybody wants to do is settle for "she said no" we can just throw out common sense in light of being GRARY over this, and exclaim "rape!". And at that point we can just forget about having an intelligent conversation over this and consider it done.
posted by P.o.B. at 3:55 PM on July 25, 2010 [1 favorite]


P.o.B., outside of any analysis via a legal paradigm, I think that the two issues (i.e., filmed v. assault) *can* be conflated.

If said filming results results in public exposure, it's not a wild argument to say that that the filming is an integral part of the assault.

In other words, here's one assault: Getting groped on the subway. Here's another: Getting groped on the subway and having it filmed and packaged as porn. In the first instance, you have one bad actor: The groper. In the second, you have two.

To the facts of the case, if the plaintiff said no no no and then said yes yes yes, I'd be on board with those who are defending the actions of the jury.

But I haven't seen any indication that she said yes yes yes (or engaged in something more definitive than "playing up to the camera," or whatever the juror said.. If I missed something, apologies.
posted by angrycat at 4:08 PM on July 25, 2010


I think that the two issues (i.e., filmed v. assault) *can* be conflated.

I can see that, and would agree in the context of what may have happened, but I don't agree that you can conflate them in the context of what was being litigated.

And I haven't seen any indication of it being claimed it was assault other than by Jezebel or here. So...*shrug*. Her lawyer's statement didn't include that word, and her statement didn't include it. So was it assault, or were they not able to claim it was assault?
posted by P.o.B. at 4:26 PM on July 25, 2010


I don't like it when Joe Francis wins anything. So that makes me angry.

But I'm having real trouble accepting that having your top down = sexual assault. Is pantsing sexual assault? My girlfriend and I pants each other all the time. Are we sexually assaulting each other when we do?
posted by AzzaMcKazza at 4:28 PM on July 25, 2010


And if they couldn't claim it as assault, by way of to much time passing or whatever other legal obstruction, than I could see that could've really hurt her case. But wouldn't the video evidence have shown whether she was assaulted? I don't know. Maybe she did have eleven assholes jurors.
posted by P.o.B. at 4:31 PM on July 25, 2010


Is pantsing sexual assault?

I believe if you walked up to a random stranger and did that you would be charged with sexual assault, so yes. But than again if you ran up to your girlfriend and she was laughing away and saying "no!", but ultimately didn't care whether you pantsed her than where are we at? A gray area that seems, to me at least, where this video resides.
posted by P.o.B. at 4:33 PM on July 25, 2010


video *may* reside.
posted by P.o.B. at 4:34 PM on July 25, 2010


In the first instance, you have one bad actor: The groper. In the second, you have two.

You're forgetting an important fact which makes your second example different than whatever happened in that bar, which is that everyone know exactly what was going on. They were making a porn tape. Everyone knew that. As far as we know, no one at GGW directed the behavior in question to happen. That was some random drunk chick acting on her own initiative. But the plaintiff knew she was going to be on a porno. By knowing this and not leaving, she did, in fact, consent to appear on the tape.

This was not a case of GGW attempting to capitalize on a crime or even a tort. No, this was a case of GGW doing what everyone knew it was doing, i.e. filming girls exposing themselves, when someone else did something wrong. It's arguable that they shouldn't have used that particular piece of tape later, but that would have to be an argument from decency, and well, the fact that they were making a porno seems to cut against such arguments. Even if the random drunk chick did commit a sexual assault, I'm not sure there's any legal grounds for suing GGW. The plaintiff was in a public place where she knew she was being filmed. That's effectively consent to the taping of whatever she does or happens to her while she's in public.*

Look, I thing GGW is a despicable enterprise. Hell, I think porn is despicable as such. But that doesn't stop me from making careful distinctions based on the evidence that we do, in fact, have. That evidence doesn't suggest a clear verdict, so I'm inclined to give the jury the benefit of the doubt, which is exactly what the appeals court is going to do. As long as it's possible for a reasonable jury to have reached the verdict they did--and no one has said anything which suggests that this is not the case--the appeals court is going to affirm the verdict, and that's going to be the end of it.*

*That's just how privacy law works, as far as I understand it, i.e. if you're in public, anything you do or that happens to you is basically fair game.

**Unless they decide to entirely redraw the law for implied consent, which I don't think anyone considers to be all that likely. Certainly not with facts as bad as these.
posted by valkyryn at 4:38 PM on July 25, 2010


You're married with kids. One day your husband comes home a bit angry. It seems that a friend of his *saw your tits* in a Girls Gone Wild video.

Your motivation to redirect your husband's anger is:

a) high
b) low
posted by bingo at 5:08 PM on July 25, 2010 [2 favorites]


But the plaintiff knew she was going to be on a porno. By knowing this and not leaving, she did, in fact, consent to appear on the tape.

Yeah, and she was stupid, which I guess was the point of my rambling anecdote. She should've said, okay, I'll be in a porno, and I'll be around lots of drunk people. So even if I think I can appear non-naked -- which in my young brain is not so terrible -- I should watch out. But she didn't, because she was young and stupid.

It's been a while since my legal days, but aren't we talking about the reasonable person standard, ultimately? Isn't it reasonable for a person in her position to assume that she could appear in this film clothed?

I.e., even if she gave her consent to be filmed -- how is that consenting to be filmed nude?
posted by angrycat at 5:14 PM on July 25, 2010


Your motivation to redirect your husband's anger is:


i might be totally missing the point, but doesn't that bolster the plaintiff's claim for damages? I'm not saying she's entitled to 5 million -- but a wrecked marriage is not a positive for the plaintiff.
posted by angrycat at 5:16 PM on July 25, 2010


You're forgetting an important fact which makes your second example different than whatever happened in that bar, which is that everyone know exactly what was going on. They were making a porn tape. Everyone knew that. As far as we know, no one at GGW directed the behavior in question to happen. That was some random drunk chick acting on her own initiative. But the plaintiff knew she was going to be on a porno. By knowing this and not leaving, she did, in fact, consent to appear on the tape.

Let's put aside for the moment that I think it's unreasonable that a 20 year old agreeing to dance on camera for GGW is agreeing to be engaged in pornography. Let's say she was. Let's say it wasn't even "soft core" GGW, but hardcore. Let's say she wasn't just dancing, but agreed to a sex act or two. Can a participant in a porn film say no? Can she withdraw consent? Can she say "yes to this, but no to that"? Is it rape if she is ignored when she says no? Is it acceptable for the porn company to profit off of the rape?
posted by Danila at 5:36 PM on July 25, 2010 [4 favorites]


This is great, because now if I pull a knife on a guy I really don't like, and he doesn't clearly say "No, do not stab me with that knife, I do not want to be stabbed, I am telling you not to stab me" then, well, I am home free, baby.
posted by turgid dahlia at 5:58 PM on July 25, 2010 [6 favorites]


If you frame the argument under rape, even as an analogous argument, you've throughouly taken the conversation to a different level. I understand why you're framing it that way, but you're atutomatically coloring the conversation in a light that's hard to have conversation about.

Let's unpack the argument in simplistics. Event where people are doing other stuff than than the regular stuff that happens at bar. Woman goes to bar with the intent to at least do regular stuff whilst fully knowing other stuff is happening around her. She is asked to participate in event and do other stuff. She agrees to event but disagrees to other stuff by event organizers. Other stuff happens to her by other participants. The question lies in whether she disagreed to other stuff happening to her from other particpants, and whether she throughly made that disagreement clear to event organizers.

That may be a bit obtuse, but I think it's a bit more fair than "shirt pulled down = rape"
posted by P.o.B. at 6:07 PM on July 25, 2010


In what world is stabbing people part of an otherwise normal interaction between people?
posted by P.o.B. at 6:08 PM on July 25, 2010


This is great, because now if I pull a knife on a guy I really don't like, etc.

Such an obvious straw man is beneath you, but I'll answer it anyways.

The answer is, no, obviously, but there's a reason for it: the law does not recognize consent to serious bodily injury, which is defined as follows in 18 U.S.C.:
(3) the term "serious bodily injury" means bodily injury which involves:
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily
The reason sexual assault is such a tricky legal issue is because there are very few things which fall under that category to which one cannot consent, i.e. exactly the same action will be rape or not based almost entirely on consent. Ergo, the question turns not on the nature of the activity, but on what a reasonable person would have perceived the other's intent to be.

I think that's something else that's been missed from this discussion. The question is not whether the plaintiff actually gave or withheld consent. The question is whether a reasonable person would have assumed one or the other. The jury apparently believed that the evidence suggests that a reasonable person would have assumed that she consented to the taping. Whether or not she consented to the exposure is irrelevant, as 1) there is no allegation that GGW was responsible for it, and 2) the alleged perpetrator is not a party to the suit. So as long as a reasonable person would have believed that she consented, she loses.
posted by valkyryn at 6:22 PM on July 25, 2010


Let's say she wasn't just dancing, but agreed to a sex act or two. Can a participant in a porn film say no? Can she withdraw consent? Can she say "yes to this, but no to that"?

Sure. Why not? That's not the question. The question is whether or not she actually did any of those things. The jury, given access to evidence we don't have, didn't think so. In the absence of such evidence, who are we to question them?
posted by valkyryn at 6:23 PM on July 25, 2010


whether she throughly made that disagreement clear to event organizers.


I think this lies at the heart of my disagreement. Why is the burden on her to make the disagreement clear?

In other words, in what world does stabbing people require clear consent?
posted by angrycat at 6:24 PM on July 25, 2010


I think it's unreasonable that a 20 year old agreeing to dance on camera for GGW is agreeing to be engaged in pornography.

I didn't say precisely that. I said that she was agreeing to appear on a porn tape. Which is essentially what GGW is, yes? I didn't say that she agreed to do anything in particular, only that she, by not leaving when she knew what was going on, essentially gave her consent for footage of her to be used. So... what's the issue here?

Isn't it reasonable for a person in her position to assume that she could appear in this film clothed?

I don't know why that's relevant. Her presence, with knowledge that taping was occurring, certainly looks like implied consent to the taping. As there is no allegation that GGW was responsible for the alleged assault, I don't know what cause of action she has against them.
posted by valkyryn at 6:26 PM on July 25, 2010


I mean seriously, I can get porn. Why would I want to watch this weak-sauce bullshit?

It's party porn! Frat boys like to drink from...kegs, I guess, keggers...and sit around with their shirts off, listening to, I dunno, Timbaland, or something, and then one of them says "Oh bro check it out, Girls Gone Wild!" and they can put it on and all sit around having erections together. Then it's like, do a tequila slammer, or whatever it is they do nowadays, and then they go crash the girl's party down the road and have loads of drunken unprotected sex with strangers, and then get into fisticuffs with one another, and then throw up all over the rose bushes, and then they go and work for a bank, and you can't get a loan from them for a car. So basically what I'm saying is, that asshole who turned you down for a car loan was only a couple of years ago sitting in a room with a bunch of other men and they all had erections.
posted by turgid dahlia at 6:27 PM on July 25, 2010 [13 favorites]


he question is not whether the plaintiff actually gave or withheld consent. The question is whether a reasonable person would have assumed one or the other. The jury apparently believed that the evidence suggests that a reasonable person would have assumed that she consented to the taping.

Okay, on the one hand we have her saying, "No no no no"

And the other hand we have *chirping crickets*

Not really seeing the consent to have her top ripped off and her tits filmed there.
posted by angrycat at 6:27 PM on July 25, 2010 [2 favorites]


Why is the burden on her to make the disagreement clear?

Because she's the plaintiff and thus bears the burden of proof.

In other words, in what world does stabbing people require clear consent?

I already covered this. Stabbing != showing your tits.
posted by valkyryn at 6:30 PM on July 25, 2010


Okay, on the one hand we have her saying, "No no no no"

At least we have allegations to that effect. I haven't seen the tape. Have you?

And the other hand we have *chirping crickets*

On the other hand, we have the fact that she knew taping was going on and didn't leave.

Not really seeing the consent to have her top ripped off and her tits filmed there.

Two different things.

1) There is no allegation that GGW is responsible for her exposure. So the mere fact that she was exposed doesn't create any liability for GGW.

2) She had already given consent to be filmed by not leaving once she knew it was happening. What happens after that isn't really something GGW is liable for.

You can argue that it's wrong and indecent to do what GGW did here. I'd make that argument. More than that, I'd make the argument that the entire project is detestable. But that doesn't make it illegal, nor does it--or should it--subject GGW to liability.

Legality and morality are not the same thing. Whether or not they ought to be is an entirely different discussion.
posted by valkyryn at 6:33 PM on July 25, 2010


If you frame the argument under rape, even as an analogous argument, you've throughouly taken the conversation to a different level. I understand why you're framing it that way, but you're atutomatically coloring the conversation in a light that's hard to have conversation about.

Let's unpack the argument in simplistics. Event where people are doing other stuff than than the regular stuff that happens at bar. Woman goes to bar with the intent to at least do regular stuff whilst fully knowing other stuff is happening around her. She is asked to participate in event and do other stuff. She agrees to event but disagrees to other stuff by event organizers. Other stuff happens to her by other participants. The question lies in whether she disagreed to other stuff happening to her from other particpants, and whether she throughly made that disagreement clear to event organizers.

That may be a bit obtuse, but I think it's a bit more fair than "shirt pulled down = rape"


Respectfully, PoB, do you see that you are trying to color the conversation yourself by requesting that we *not* use the word rape?

You want the argument to be about "other stuff" happening, not specifically about rape or sexual assault happening.

So, do you think your argument is only valid if this "other stuff" does NOT include rape or sexual assault? Or do you think your argument still holds if the "other stuff" CAN include rape or sexual assault?

If the latter, we have to specifically talk about what happens when the "other stuff" IS rape/sexual assault. We have to talk about the whole range of things the "other stuff" can be.

It's not good faith in my opinion to use euphemisms to cover up the range of things you're including in your argument. If people agree with your argument only when you're covering up the range of things you're applying it to, that doesn't mean your argument is valid for those things you've covered up! It actually indicates the opposite.

If people have a bad reaction to applying your argument to cases of rape, that doesn't mean that the thing to do is cover up the fact that you're applying it to cases of rape, but yet quietly still apply it to them. That means something important about the validity of your argument, or about the range of things that people think it is reasonable to apply it to.
---


And I still want to know whether it would be legal, if I were being filmed in public and/or with my consent ... if I happened to be raped on camera, if it would be legal for the person filming me to, against my will, distribute and profit off of the footage of me being raped..

posted by Ashley801 at 7:27 PM on July 25, 2010


The plot thickens-- just trying to shed whatever additional light I can. There's some footage here -- seems that the person who pulled her top off may have, in fact, worked for Girls Gone Wild. Please excuse the Greg, the Fox News douche.

Wanna reassess those legal analyses?
posted by karminai at 7:46 PM on July 25, 2010


Respectfully, PoB, do you see that you are trying to color the conversation yourself by requesting that we *not* use the word rape?

Of course, like I said I was just trying to upack it in simple terms. I probably failed and made it a bit too oblique to the conversation.
I'm assuming you do know she wasn't raped, right? And if so, why do you think that is such an apt comaparison?
posted by P.o.B. at 8:17 PM on July 25, 2010


Ugh, that Fox clip makes me want to vomit.

Anyway, it sounds like there's some confusion in this thread about the origin of her implied consent, with a) some people asserting that it stems from her being in a bar with the GGW camera crew b) some people suggesting that there was some sort of sign posted c) that she signed a consent form, but it consented only to being filmed, not to being filmed topless.

If a) the folks in this thread who have worked in tv are pretty clear that this doesn't count as consent If b) that's a little more gray area but still sounds a little sketchy, can anyone clarify if that is legally sufficient for consent? If c) there is maybe a legitimate argument to be made on both sides (although I'm 100% with the plaintiff here), but where are people reading that she did in fact sign something? I'm not seeing that anywhere but I suppose I could have missed it. The impression I got from the Fox report was that she never signed anything at all (but it's entirely possible that they were just being sloppy).
posted by naoko at 8:32 PM on July 25, 2010


well, that fox analysis was so vile that now there a few people i'd like to stab, consent be damned

(not criticizing you for posting it, karminal. just - blech. blech blech blech)
posted by angrycat at 8:36 PM on July 25, 2010


Yeah I am still pretty enraged over that clip. Who is that horrible Greg guy? And Mercedes Colwin, what is her deal?
posted by naoko at 8:46 PM on July 25, 2010


2) She had already given consent to be filmed by not leaving once she knew it was happening. What happens after that isn't really something GGW is liable for.
posted by valkyryn at 9:33 PM on July 2


am really amazed at how you use legal mumbo-jumbo to still justify assault, whether it is sexual or otherwise. but am not going rehash why many of us still insist this is about assault and why the company should be held liable.

i'd like to share with you why the tone of your "objectivity" rubs me the wrong way.

regardless of your politics and who you vote for, you sound like those strict constructionist republicans for whom the reading of a law or tort is above everything. and am not only talking about conservative legal eagles who are trained to deny women their pershonhood when it comes to assault, rape, reproductive rights.

you sound like con-lawyers for whom contracts, TOU, work visas or filming consents become transfers of rights and privileges to the corporations. the right-wing machines has succeeded at making a whole generation of lawyers and wannabes believe that no matter how tenuous the legal arrangement, it is meant to strip the individual of their personhood for the common corporate good.

take, for example, what happens when IP privileges clash with Labor rights: most tech and industry companies put most of their creative people into intellectual property indentureships. from toy companies to chip makers, all sorts of creatives sign away their rights to their own IP with contracts that deny them ownership of their own ideas for their own benefit and wealth. this is absolutely amazing that companies can get away with the kind of bullshit that even 100 years ago was considered illegal and up their with slavery ---indentured servitude. but the vilification of unions and the belief that, well, it's not really that bad since am anyway an engineer, is but one example at how the clock on labor laws has been turned back substantially in the last 30 years.

and in a way this case is tinted by those IP/Labor indenturships: to be within the walls of a corporation's lair has become synonymous with relinquishing the right to defend yourself, to sue, to walk away with your own ideas or in this case, to withdraw consent.

so, just to go back to my initial point, your reading of "implied consent" is so obtusely narrow that of course it has to deny the very existence of the assault. because recognizing there's a problem with the case because an assault was recorded would have thrown the whole case into a tizzy by blowing away the cover of pseudo objectivity in favor of a more nuanced look at the case that could be construed as, GASP, judicial activism in favor of the plaintiff.

as if saying "she was playing up to the camera" was somehow an objective observation.
posted by liza at 9:18 PM on July 25, 2010 [1 favorite]


and forgive the runon sentences and any grammar faux-pas but it was difficult to contain myself from going BLOGDIVA SMASH! BLOGDIVA MASH! GAAAAAAARH!
posted by liza at 9:24 PM on July 25, 2010


Good God, karminai, not that I expect anything from Fox News, but that was unrelentingly bad both morally and as legal analysis. Vicki is generally right about what she's saying on Jane Doe's side (except about the Appropriation of Likeness bit, as I explained in my first comment here) and the video certainly makes it appear as if it's the camera operator who reaches out to pull her top down.

Anyway, the Fox News team is horrible here, even moreso because they are going from the assumption that GGW perpetrated the battery and are still saying that Jane Doe "wanted it," essentially.

From Mercedes: "She assumed the risk!" Assumption of Risk is generally about participating in sporting events. It's why you can't sue a linebacker for physical damage taken from a tough hit in a football game - you chose to play the game and knew that it was a reasonably foreseeable outcome due to the linebacker also playing by the rules. Assumption of Risk doesn't stop Evander Holyfield from suing Mike Tyson for biting part of his ear off, though. That's not something anyone agrees to implicitly in a boxing match.

Claiming Assumption of Risk as a defense in this case means that as long as you're at the place where GGW is filming, whatever happens to get you nude is fair game. It is claiming that, by going into the bar and dancing, you understood that it was a reasonably foreseeable consequence that the battery would occur.

(Brief tangent while I go into pedantic just-graduated-from-law-school mode): To clarify terms, assault doesn't mean what you think it means, most likely. What the layman generally thinks "assault" means is actually battery, i.e.:
1. The Intentional
2. Unwanted
3. Touching of another
4. Absent any right or privilege
Assault is, roughly, intentionally putting another in fear (reasonable person standard) of a battery. In other words, pulling a gun on someone or raising your fist would likely be assault, actually firing the gun or hitting the person would be battery. In criminal law the terms tend to vary in meaning more state-by-state and the common (mis)understanding leads to the common term "sexual assault" meaning roughly "battery of a sexual nature."
/legal pedantry tangent

Anyway, according to the Fox News link (which can't be very well trusted on anything but is the only link to actually discuss the specific tors involved here) she did originally sue for batter, invasion of privacy, and appropriation of likeness. Unless Missouri law is vastly expanded from the general restatement of torts, then appropriation of likeness will fail (though I agree with allen.spaulding way above; this seems to be their angle in the end.) Battery and invasion of privacy both would require that GGW be responsible for the battery, which it appears from the viedeo that they are, but they probably got away with that based on the hand pulling the shirt down being disembodied (even though it was coming from exactly where the camera-operator's hand would have been.)

Which leaves Jane Doe with nothing. Because the issue - the ONLY issue - at stake here in the final legal battle, is whether the general consent to be filmed was revoked by her refusal to flash the camera.

And that's an area of the law without any real precedent. And in a way, it's better if this goes to the appellate court, because juries can't set binding precedent. Higher courts can.
posted by Navelgazer at 9:27 PM on July 25, 2010 [1 favorite]


On the other hand, we have the fact that she knew taping was going on and didn't leave.

So, if you buy a ticket to a boxing match and a fight breaks out in the stands and you get hit, you can't sue, right? After all, you knew a fight was going on.

Attending an event where filming is occurring != agreeing to be filmed topless.
posted by allen.spaulding at 9:35 PM on July 25, 2010 [1 favorite]


You can split legal hairs, and blame her. It clearly states that you can hear her saying No, No, as her clothing is forcibly removed, and her breasts exposed to cameras. It's reprehensible, and ridiculous that by being present, she agreed to be photographed unclothed. Where's the Moral Majority sticking up for her and reviling this mess?

Every woman in America should stop having anything to do with any guy who has any of these videos. Every guy in America should consider the concept that women and men deserve respect. This cheesy crap demeans the women who expose themselves and the men who buy the video.
posted by theora55 at 9:42 PM on July 25, 2010


Sorry about the quality of the video and Fox in general-- it was the only one I could find that showed some of the original footage, plus discussed the possibility of GGW being involved in the exposure itself.
posted by karminai at 9:43 PM on July 25, 2010


So, if you buy a ticket to a boxing match and a fight breaks out in the stands and you get hit, you can't sue, right? After all, you knew a fight was going on.

You sure as hell can't sue the WBO because the drunken asshole in the seat next to you took a swing at you.
posted by kafziel at 10:06 PM on July 25, 2010 [2 favorites]


I thought the Fox video was really helpful. I think, although the Greg guy came off as so evil it would be funny if we were talking about something else, that the Fox take on it is representative of the skepticism that those who are violated sexually face if said violation takes place in disputed circumstances.

This is why this discussion has caught my attention, anyway; the Evil Fox Guy's assertion that the fact that she was "jiggling" = "consent to have top ripped off while filmed" is ugly, but I'm not sure it's that much of an outlier in terms of how folks view these things.
posted by angrycat at 10:09 PM on July 25, 2010 [2 favorites]


She sued the wrong person. That's what the "legal hair splitting" is about. Except it's not hair splitting. It matters. She went after the people that FILMED the illegal thing instead of the person that DID the illegal thing. Again, it matters.

She SHOULD go after that woman; she's the one that seems to have broken the law.
posted by NortonDC at 10:18 PM on July 25, 2010 [1 favorite]


If she "consents" to being filmed topless by merely showing up to the event, even with no intention of removing her shirt, then you are saying that a reasonable person would assume that one's top might be forcibly removed at such an event. If you are holding an event where a reasonable person would assume criminal acts may take place, and criminal acts take place, how the hell would you not be criminally liable?
posted by Zalzidrax at 10:19 PM on July 25, 2010 [1 favorite]


I hope that everyone watches the Fox News link, which shows the video which makes it seem like it's a male hand reaching out from the camera to pull her top down. Just saying.
posted by Navelgazer at 10:33 PM on July 25, 2010 [1 favorite]


I'm with valkyryn on this one - reprehensible but not illegal; the plaintiff sued the wrong person.

She specifically went to an event where she knew she was likely to be filmed, and was warned on entering that there was filming going on. In my eyes, when you voluntarily enter an active filming area, you are giving implicit consent to be filmed. She was filmed, and then assaulted by someone, in a way that GGW likes. IF GGW was not directly involved in the assault, then the plaintiff sued the wrong person. She indemnified GGW by entering the premises. She did not indemnify the individual who assaulted her, and she should have sued that person for the damages. It's ugly, but I think she gave up a lot of rights to legal recourse when she entered an active filming zone.

As to the question could GGW have filmed and profited from a more serious crime, like a rape, well, that's something I doubt they could get away with. They profit off smaller crimes like public drunkenness, public lewdness, etc etc, but nobody will pursue those crimes because they're not worth it. If GGW sold rape footage, the police would come down on them in full force and of course they would all be considered accomplices to a violent felony.
posted by BlackLeotardFront at 10:40 PM on July 25, 2010


I hope that everyone watches the Fox News link, which shows the video which makes it seem like it's a male hand reaching out from the camera to pull her top down. Just saying.

Yeah, only one of the stories I read mentioned that it was a female. The others kept it gender neutral. So that may just be an error on the part of the one article.
posted by karminai at 10:45 PM on July 25, 2010


NortonDC: How do you know that GGW didn't break the law by distributing footage of the illegal act? Maybe there is no MO or Federal law to support such a cause of action, but I don't see why such a law would be clearly unconstitutional.

Considering the ire over the legal discussions (legal mumbo-jumbo, splitting legal hairs, etc.), I think it might be more productive to talk about what the law ought to be, given the constraints of competing policy preferences (freedom of speech, privacy, etc.) than to talk about what the law governing a particular case actually or likely is.

I suspect that ought discussion would alienate non-lawyers and non-USians less, and I suspect it will be more informative given that people of good faith are more likely to disagree over how to create rules that would prevent GGW from distributing this footage than over whether GGW's distribution is immoral. Further, talking about what the law ought to be can make the utility of common legal concepts more clear when they come up. ("Implied consent" for example, has been pretty frequently misapplied or misunderstood here.) I don't mean that in a "lawyers gotta teach the unwashed" way; I mean it in a "this conversation is better if it doesn't depend on everyone being a lawyer" way.

That's not to criticize Navelgazer, who is definitely going to pass the bar, but as he points out in his last summary, MO law might differ from what he described here. And as we've seen in the thread itself, the original articles don't provide enough factual information about the relationship of the shirt-puller to GGW. That's only to say that statements about the applicable law are going to be provisional by necessity. Unfortunately, the qualified nature of the discussions aren't always obvious to everyone.

It may be a bit late in the game for this thread, but maybe it's something to keep in mind for the next so that legal expertise can help facilitate discussion among everyone rather than alienate people without legal expertise.
posted by Marty Marx at 11:29 PM on July 25, 2010 [2 favorites]


1) It amazes me that, this far into the thread, several times after I've said that I think this whole situation is a moral disaster with no good actors, that people still think that I'm arguing that GGW is in the right.

2) The FoxNews clip would seem to change the analysis entirely, despite the despicable commentators. If the allegation is, in fact, that a GGW cameraman pulled down her top, that's totally different than some random drunk chick doing it.

The crux of my argument the entire time has been that, according to the initial reports, someone other than GGW was responsible for exposing her. As there was no initial allegation that GGW directed the exposure, they had no responsibility for it, and as it would seem that she consented to being filmed at all, what happens after that isn't their responsibility either.

This is the fundamental principle of tort law. To find someone civilly liable, they must have 1) breached 2) a legally-recognized duty which 3) is the legal cause of 4) legally-recognized damages. Here, if GGW was not responsible for the girl being exposed--and it's only recently that anyone has suggested that they were--then there's no breach, so no tort.

Unless, of course, it was their responsibility, in which case the whole thing changes.
posted by valkyryn at 3:06 AM on July 26, 2010


3) In response to this:

And I still want to know whether it would be legal, if I were being filmed in public and/or with my consent ... if I happened to be raped on camera, if it would be legal for the person filming me to, against my will, distribute and profit off of the footage of me being raped.

This is terrible, but... it's possible that it would be. The reason that sort of thing doesn't appear in the news all the time is not because it's illegal to do that,* but because there's still a sense of moral propriety in broadcasting, enforced in part by our collective social conscience and advertiser squeamishness.

In the United States, there's such a thing as the First Amendment. The First Amendment means that unless there's a massively compelling reason to do otherwise, you can say and publish whatever you please. Filming someone in the middle of being victimized, as long as 1) you did not cause or direct the attack, or 2) you had no duty to rescue** is not illegal. Rape is an emotionally and politically charged crime, but legally speaking it isn't that different from any other kind of assault. We see footage of people being plain-old vanilla assaulted every day on TV. One of the implications of the First Amendment is that, as far as I can tell, here's no legal reason, just a moral one, that footage of a rape couldn't be used in the same way.

Look, the law does not exist to create a moral society. It can't. It doesn't even try to, despite what your congresscritter says in his stump speeches. All the legal system basically does is provide a forum to resolve disputes which cannot be resolved elsewhere. But it cannot resolve moral issues. It is not illegal to be morally reprehensible as long as said reprehensiveness does not violate any statute or legally-recognized duty. There are a huge number of situations where the legal system cannot give any relief to a morally aggrieved person.

It's morally wrong to swindle someone into agreeing to a contract the terms of which they haven't read, but the fact is that there is a duty to read the contracts you sign, so unless a term is so completely unfair that it would be unconscionable,*** a plaintiff would be SOL.

It's morally wrong to cheat on your spouse, but it's going to be almost impossible to get any legal remedy other than a divorce--which doesn't require adultery anyway.

It's morally wrong to see someone drowning and do nothing to help, but the law does not require you to put yourself at risk to help others.

So this case isn't only about what happened in that bar one night a few years ago. It implicates legal doctrines going back centuries and exists in the legal system, which values consistency and efficiency almost above anything else. It has to. It may sometimes get an undesirable outcome as a result, but the alternative is not being able to get a good result at all. Indeed, if a judge said "I don't care what the law says, the defendant is a scumbag and I'm awarding damages," that would not only be reversed on appeal but actually unconstitutional as a violation of due process.

But the alternative is to empower judges to mete out punishment and award damages based solely on their own moral preferences. This is arbitrary power, and it's precisely what the Constitution was designed to avoid. The upside of this is that we no longer have judges who can simply decide that, say, they don't like women or black people, and base their determination on those prejudices.****

Cases like this one may serve to show how arbitrary power does occasionally have something going for it, or at least how a nation based on laws and rules, not wisdom and justice, has its shortcomings. But unless one wants to argue that what we really need is a return to autocratic rule, cases like this one aren't something the legal system is going to be able to deal with satisfactorily. The plaintiff's own actions--both that night and in the way she prosecuted her case--appear to have sufficiently undermined her claim to result in a jury denying her relief.

*Actually, it might violate FCC decency/obscenity regulations, but that's a different kettle of fish entirely.

**And you don't in most places.

***An incredibly high bar.

****Which is not to say that judges don't use their own preferences as they interpret and apply the law. This is what the Supreme Court does for a living. But everyone, from the lowliest traffic court judge to the Chief Justice of the Supreme Court operates on the assumption that the law is the law and even if all they really want to do is enforce their preference, they need a legal justification for doing so. This may not seem like much, but it's actually really important. Why is an entirely different discussion.
posted by valkyryn at 3:18 AM on July 26, 2010 [6 favorites]


To throw in an example: just about every adult American has seen footage of Rodney King getting the ever-living shit kicked out of him by two LAPD cops. No one even questioned whether this was okay, despite the fact that neither the cops nor King had consented to the filming and the networks made a ton of money showing the footage.

It was in public, and the fact that King was arguably being assaulted doesn't change the fact that when you are in public, you have no reasonable expectation of privacy.
posted by valkyryn at 4:31 AM on July 26, 2010 [1 favorite]


despite the fact that neither the cops nor King had consented to the filming and the networks made a ton of money showing the footage.

This is a less than ideal example, as I am reasonably sure that the King video was never released for sale on an exploitative video compilation of black men being beaten by cops. Ugh, I mean, I fucking hope not.

Also - and I fully admit to knowing fuckall about the laws involved - does the inside of a nightclub still count as the same kind of public space that the side of the road does?
posted by elizardbits at 5:40 AM on July 26, 2010


This is a less than ideal example, as I am reasonably sure that the King video was never released for sale on an exploitative video compilation of black men being beaten by cops.

You can't seriously assert that it would be constitutional for the government to require that compilations of news footage be packaged and marketed in a manner respectful to the participants/victims.

There's lots of footage out there being sold and shown on a daily basis that shows people having terrible things inflicted on them, things that might well still give them nightmares. Footage of Kennedy being shot. Footage of them being shot by Charles Whitman, or trying very hard not to be shot by him. Footage of their family members being killed in the airshow crash at Ramstein. Footage of aircraft impacting the World Trade Center. Footage of people jumping from the burning WTC. Footage of people being blown to bits by US attacks.

Selling and distributing this is legal. It's legal to put this stuff on the news, even without the consent of the people being photographed if it was in public. It's legal to sell this compilations of this footage for educational or political purposes. It's would also be legal to sell footage of various disasters with "Yakety Sax" in the background as comedy or for perverts to masturbate to. What keeps commercials for "WTC Jumpers Gone Wild!" and "World's Most Hilarious Airshow Crashes" from the airwaves is not governmental action, but simple universal revulsion.
posted by ROU_Xenophobe at 6:49 AM on July 26, 2010 [3 favorites]


as I am reasonably sure that the King video was never released for sale on an exploitative video compilation of black men being beaten by cops.

That sort of commercial exploitation does start to cross some lines, but it's entirely possible that there'd be no privacy law which would prohibit this. There'd probably be other laws that would, and the publisher might never survive the PR hit, but I'm not aware of any barriers based on issues that have been discussed here.

does the inside of a nightclub still count as the same kind of public space that the side of the road does?

Pretty much. The only real difference is that the owner of the club can tell you to piss off, which means that he can set restrictions on who gets to do what on his property independent of the law.* This is why you aren't allowed to use cameras in movie theaters or at concerts. Yeah, people make noise about copyright, but theater owners can enforce those rules not because of copyright--they don't own it, remember?--but because they're property owners.

But all are places to which the public is invited, and as such, count as public places with respect to privacy laws.

*Mostly, anyways. You aren't allowed to discriminate based on certain categories protected by federal law--race, disability, Vietnam veteran status, etc.--but you're totally allowed to impose other arbitrary restrictions. For example, if a club wanted to limit its clientele to the very rich without pissing them off too much, they could impose a $10,005 cover charge, payable only in cash, of which $10,000 would be refunded when you left. It's stupid, but it isn't illegal.
posted by valkyryn at 6:53 AM on July 26, 2010


ROU_Xenophobe gets it.

The reason news footage is such a useful counterexample to the suggestion that what GGW did here should be illegal is that the law has yet to come up with a useful definition for what counts as news and what doesn't.

This is important. The government is generally prohibited by the First Amendment from privileging some kinds of speech over others. Some people think that "news" or "political speech" should receive special treatment, but no one has come up with a way of clearly defining what counts as news/political speech and what doesn't. So if it's legal to do something as part of a newscast, it's legal to do it in making a porno. Conversely, something which is illegal for non-journalists to do is also illegal for journalists.

Because who's to say what counts as journalism? Why aren't bloggers considered journalists? Because a media company doesn't pay their salary? That seems arbitrary and elitist, doesn't it? It would mean that the only people who get truly free speech are the employees of multinational corporations, and that's hardly what we want.

This is why liza's rather unseemly attack on me is so off base. Rather than protecting evil corporations against the little guy, the position I've articulated throughout the thread is why the little guy gets any say at all.
posted by valkyryn at 7:03 AM on July 26, 2010 [3 favorites]


...seems that the person who pulled her top off may have, in fact, worked for Girls Gone Wild.

Note that she and her attorney "alleged" that the person worked for GGW. This was at the preliminary stage of filing the lawsuit (also note that they were seeking $25,000 and not $5 million then, etc.). It appears from reports now that that allegation was possibly not proferred in court and/or not substantiated.

Once again, none of us were there in the jury box.
posted by ericb at 7:10 AM on July 26, 2010


There's so much "GGW is an evil company and I just want to see them get fucked so hard who the cares that I haven't seen the evidence or what actually happened or what the law requires" in this thread its actually more disgusting than GGW itself. God help us if any of you make it on a jury.
posted by shen1138 at 7:11 AM on July 26, 2010 [3 favorites]


does the inside of a nightclub still count as the same kind of public space that the side of the road does?

For the most part, yes, because it is a place of public gathering. For sure if everyone knows there is filming going on.


She sued them for invasion of privacy. For that to be successful, she has to prove that she didn't know she was being filmed at the time. The jury found that claim to be unconvincing. That is ALL this particular court case is about. The law she sued under has nothing to do with what is ON the tape, only whether she knew she was being taped.

What is confusing, I think, is how a lawsuit works. It works just like a criminal case. Just like the State says "we think John Q. Public has violated XYZ law, for the following reasons", a lawsuit says "I think I was legally harmed by ABC Corp. because they violated this law, for the following reasons". Whoever brings the case bears the burden of proof. AND, more importantly, that is the only thing the judge or jury can consider. If a charge wasn't made, the jury can't find someone guilty of that.

So in this case, while the jury might have felt sympathy for her situation, and might have wanted to say "well, GGW didn't violate this law, but they did contribute to the delinquency of a minor, so we will award damages based on that," they can't.

(The same thing happens with Supreme Court discussions, here and elsewhere. People will breathlessly complain about how the Supreme Court could possibly let that awful person walk scott-free, when all they were considering was whether the evidence was collected properly.)

The law is brutally logical- it is in effect a bunch of if-then-else statements. It was designed that way SPECIFICALLY because we are illogical, empathetic, emotional beings. The law provides a framework for resolving problems where we force ourselves to follow the rules, so that we protect the rights of everyone, and so we don't harm the innocent. Because if we allow ourselves to make exceptions, we open up the door that someday an exception could be made against us.

To many, it seems like a game that values its rules more than its purpose. But that's the point: the rules protect the game so that people trust it.

GGW may well deserve to pay damages to this woman. But not for the reason she sued them. The solution is not to encourage judges and juries to break the rules, but to encourage lawmakers to change the rules.
posted by gjc at 7:12 AM on July 26, 2010 [4 favorites]


Whenever I had an epic girls night out back in my glory days, it was always considered good policy to make sure there was at least one woman in the pack who could be counted on to remain relatively sober and make sure the rest of us drunken fools didn't get into serious trouble. In the midst of all these people saying that the plaintiff deserved what she got, or why else would she have been there (seriously???WTF??), I can't help but wonder if maybe she was that sober person in the group. Her being there shouldn't constitute a guarantee that she wanted to "go wild". There are other reasons she may have been on that dance floor.
posted by Go Banana at 8:22 AM on July 26, 2010 [1 favorite]


the suggestion that what GGW did here should be illegal

Well, I do think that it should be civilly illegal to invite the public to a party where you hope that people will get drunk and behave lewdly, without making a good-faith effort to keep the people you invite safe from each other. And that if discovery indicated that the filmmakers intended and hoped that the environment they created led to sexual assaults among their guests, for them to be criminally liable as well.

But that has nothing to do with the filming.
posted by ROU_Xenophobe at 8:27 AM on July 26, 2010


There are other reasons she may have been on that dance floor.

Certainly. That's not really the question. As discussed upthread, the question is whether she communicated what she wanted effectively. A jury who had full access to the evidence thought that she didn't.

They may have been wrong, but no one who hasn't see the evidence is in any position to say so.
posted by valkyryn at 8:31 AM on July 26, 2010


You can't seriously assert that it would be constitutional for the government to require that compilations of news footage be packaged and marketed in a manner respectful to the participants/victims.

Uh. What. I'm not sure what you're reading into my comment here, but I said nothing about government regulations, dude. I just said that I don't think that a video compilation of black men being beaten by cops, marketed towards racists, actually exists and is sold in the same manner as GGW videos.


But all are places to which the public is invited, and as such, count as public places with respect to privacy laws.

Got it, thanks for the concise explanation.
posted by elizardbits at 9:57 AM on July 26, 2010


If a man had been pantsed in a similar situation, and sued the filming company, would the jury have decided in his favor? I believe this hypothetical question is relevant to the current topic. I think much outrage is based on the belief that women are treated unfairly in both a legal and cultural context. Perhaps it was legal for GGW to film, sell, and distribute what was most likely a case of battery. Should it be legal? Did the plaintiff sue the company merely for profit? Can consent (implied or otherwise) be revoked at a later date? I suspect in the latter case the legal answer is no. Please pardon me if these questions have already been clearly answered.
posted by aurelius at 10:15 AM on July 26, 2010


I can think of few better ways to indicate "I do not consent" than not signing the consent form.

If she had signed the consent form and later argued that her nudity was not consensual, then sure, there's some room for argument there.

But what part of she didn't sign the consent form says "I consent to this" to these people?
posted by ErikaB at 10:35 AM on July 26, 2010 [2 favorites]


I cannot continue to discuss this as if I had not just watched a video in which a cameraman's hand reaches out and pulls down the top of a woman who is trying to turn away and block him. His company then sells and profits off of the video.

Can consent (implied or otherwise) be revoked at a later date? I suspect in the latter case the legal answer is no.

For all practical purposes, a woman's consent cannot be revoked. I'm not talking about legally, but the reality of the matter. A woman doesn't even have to say yes to consent, that much is clear in this case. Saying no does not take away consent. I don't know what could. That's not at all reasonable or civilized but that's what it is. Women are in a perpetual state of consent by virtue of being women.

I would also dispute that by consenting to being filmed a person consents to allowing the company operating the cameras to do whatever they want to that person and then to sell the tapes. This is very much typical of what GGW has done before and will continue to do, and they have the legal carte blanche to do it because they have the social carte blanche to do it.
posted by Danila at 10:40 AM on July 26, 2010 [4 favorites]


I can think of few better ways to indicate "I do not consent" than not signing the consent form.

Signing a consent form is not the only way to give consent, it just serves as evidence that you did so. Ergo, not signing it is not the same thing as withholding consent, though it can serve as evidence that you did so. Consent and the lack thereof is independent of any sort of writing.
posted by valkyryn at 10:41 AM on July 26, 2010 [1 favorite]


I would also dispute that by consenting to being filmed a person consents to allowing the company operating the cameras to do whatever they want to that person and then to sell the tapes.

You're jumping in a bit late here, but for most of the above discussion, none of us had access to the actual tape. For most of the thread, it was assumed, based on the allegations in the links in the FPP, that some random drunk chick had exposed the plaintiff, not the cameraman.

You have to admit that this changes the analysis at least a little.
posted by valkyryn at 10:42 AM on July 26, 2010


So as long as a reasonable person would have believed that she consented, she loses.

We all lose when this is allowed to happen without consequences to the perpetrators and their minions.
posted by Blazecock Pileon at 10:45 AM on July 26, 2010


I just said that I don't think that a video compilation of black men being beaten by cops, marketed towards racists, actually exists and is sold in the same manner as GGW videos.

Umm... Not precisely the same thing, but it's close enough to make me, at least, really uncomfortable.
posted by valkyryn at 10:45 AM on July 26, 2010 [1 favorite]


> Not precisely the same thing, but it's close enough to make me, at least, really uncomfortable.

Come now. COPS is much more about the classism than it is racism.
posted by Burhanistan at 10:50 AM on July 26, 2010


We all lose when this is allowed to happen without consequences to the perpetrators and their minions.

Now that we can agree on.
posted by valkyryn at 10:54 AM on July 26, 2010


I cannot continue to discuss this as if I had not just watched a video in which a cameraman's hand reaches out and pulls down the top of a woman

No, that's not at all what the tape looks like to me. It shows a right hand, anchored left of frame, entering on the left. I can't imagine a scenario in which that could be the hand of the camera operator.

Try it with your own limbs while operating an imaginary camera on your left shoulder (since the right hand is in frame and obviously NOT supporting the camera). It doesn't work.

Also, the description indicates (but we don't see) two hands pulling, which would also be damn hard for the camera operator to do.

Finally, it looks like somebody's shoulder is in between the camera operator and the victim at the time of the yank, again making it unlikely to be the act of the operator.
posted by NortonDC at 1:46 PM on July 26, 2010 [1 favorite]


NortonDC: How do you know that GGW didn't break the law by distributing footage of the illegal act?

The first amendment to the US Constitution covers that, as others have already pointed out for us.
posted by NortonDC at 1:47 PM on July 26, 2010


It's not hard to find a torrent of the video. I was curious so I "borrowed" it. I was going to edit the video to the pertinent footage but the woman wants to be a Jane Doe for a reason so I'm not going to do that or provide a link to the torrent. Here's what is in the video:
[Bad techno music overlays the audio track]
Woman, holding drink, with back to camera is dancing. A woman's hand taps her on the upper part of her arm and she turns towards the camera. She says "WOOOO". She dances to the camera as she cups her breast shows her cleavage she mock tugs at her shirt and again the arm tap (for what I assume to be an attempt at getting her to show her breasts). She clearly says "No, I can't" as she gives a no headshake. More cupping towards the camera and laughing. Laughing towards friend. Edit. Guy next to her talking in ear, she again turns toward camera saying "I can't." while pulling her own blouse strap down and partially exposing one of her areolas. Laughing. I believe she says "I can't" again. A male (who I assume was sexually stunted at the age of thirteen) jumps in and pulls her shirt down. Wide eyed laughing while she is covering up. It's roughly 18 seconds of footage.

One thing to note is that the video is a hardcore porno which contains scenes of young (drunk?) woman performing sexual acts on each other.
posted by P.o.B. at 4:51 PM on July 26, 2010 [2 favorites]


thanks, P.o.B.

so, idle curiosity, GGW is usually hard core porn, interspersed with the dancing partying stuff?
posted by angrycat at 5:01 PM on July 26, 2010


These days I don't really know. I remember when they first had their late night commercials years ago. Hadn't thought much about it, because flashing = big woop. We ended up getting a hold of one of the tapes because someone had said they were great, and like another poster mentioned up above it was really boring pedestrian stuff. Party, dance, party, flash, repeat. It was kind of like dangling a feather in front of a cat behind a piece of glass. "That looks like a really great party. I'd rather be partying than sitting here. Let's get out of here!" So I never thought they were that great of a product and were mostly geared towards older men. I think nowadays they go around coercing young drunk girls into doing some girl on girl and than intersperse that with the dancing flashing party stuff.
posted by P.o.B. at 5:39 PM on July 26, 2010


That FOX news clip is just stunningly awful. I admit I don't watch FOX news, but I swear that even their low standards have lowered over the years. I was struck by how similiar all their their news journalists look and how they act like "mean girls." This is so far from "news" that it has now entered the realm of performance art-- something like Kabuki Theater or Victorian Melodrama.
posted by Secret Life of Gravy at 6:14 PM on July 26, 2010


I wonder if there is some argument that could be made that, to the extent she was *playing for the camera* she was doing it the result of coercion. I'm assuming she was intoxicated, sorry if I'm wrong about that. You have these people saying god knows what shit to her encouraging to take off her clothes. They supply her with booze.

Going with PoB's accounting of it, it reads to me that she was drawing a clear line but was getting pressure to do more -- hence the cupping of the breast, the exposure of part of her breast.

I guess I can sort of get inside the head of a juror (as long as he doesn't sound like Greg the Fox Guy, that was just fucked up) who sees this girl voluntarily engaging in actions that make it look like she's up for anything, and knowingly does this for the makers of a porn film, and perhaps there's the mental calculus that she'd already debased herself, so what damages could she get because somebody went too far. She's already voluntarily shown part of her breast, after all.

Thus, I don't feel full of hatred for the jurors. I don't know what arguments were made in court, maybe they got a shitty judge, and yeah, litigating it on appeal will suck because the standards are so hard.

However, can't something be done about this Harris guy? If he's going after college girls, jesus, maybe higher ed needs to take a real damn interest and maybe start some shit with him. That would be satisfying to see.
posted by angrycat at 7:50 PM on July 26, 2010


I wonder if there is some argument that could be made that, to the extent she was *playing for the camera* she was doing it the result of coercion.

Probably not. Coercion is a pretty tough thing to establish, legally. In the absence of any threat of imminent physical harm, this sort of social pressure is not grounds for any legal defense. It isn't even good enough that someone threatens to hurt you next week: the threat needs to be credible, and it needs to be now. Some states permit property damage to ground coercion, but generally only in the context of property crimes, e.g. a threat to destroy your car may get you off of a theft charge, but won't excuse you from hurting someone.

This is really how it needs to be. Otherwise, the next time some frat boy rapes a girl who was a little drunk, all he'd need do is argue that the bros pressured him into it and he was therefore coerced.

No, if we want the legal system to be able to hold anyone responsible for anything, we need a definition of "coercion" which excludes the sort of thing that happened here.
posted by valkyryn at 3:07 AM on July 27, 2010


Oh, and voluntary intoxication generally doesn't get you off of anything either. The only way for intoxication to be a defense is if it were involuntary, e.g. someone drugged you, you didn't know the punch was spiked, or--seriously--it was your first time drinking and you didn't know how much was too much. Other than that, the legal system will essentially disregard intoxication when attempting to establish intent. If anything, being drunk makes it more likely for requisite intent to be established, as by ignoring a significant part of your mental state, anything which would cut against your intent goes too.

The argument goes that while you may not have been completely in control of your faculties when you did whatever it was you did, you were in control of them when you decided to get drunk, and you are therefore responsible for anything which happens afterward.

This, again, is the way it needs to be, otherwise there'd be no way to hold drunk people responsible for their actions. It also puts a slight burden on people who decide to get drunk, but drunkenness is generally viewed as something of a social problem, the costs for which should be placed on drunk people, not their victims.
posted by valkyryn at 3:16 AM on July 27, 2010


valkyryn - not to nitpick some generally correct points on a largely moribund thread, but I think you're confusing intent/consent with regard to voluntary intoxication.

Voluntary intoxication cannot be used to negate the intent requirement of a crime, as you correctly stated. However voluntary intoxication can negate consent, especially in the context of sexual assault or contract formation.

I'm not really sure how this affects the "playing to the camera" which I read as a sign of jury sexism and bias, a coded term to mean "she clearly wanted it, even if she said no." I just wanted to nitpick.
posted by allen.spaulding at 8:33 AM on July 27, 2010


a coded term to mean "she clearly wanted it, even if she said no."

Which I think is an easy assumption to jump to. I think even if Doe just danced towards the camera without intentionally making her breasts the spotlight, you could still make the same statement though. I could see how the jurors could come to the conclusion they made simply by how the question was put to them. Such as "did this woman know she was being filmed and subsequently going to be put on a video?" My conclusion would be "Of course. She fully knew she was being filmed and was dancing (playing, acting, whatever) to the camera." That conclusion would sit outside the frame of whatever unwanted attention she received.
To be honest thinking back on it, since I only gave the rest of the video aside from the specific footage a quick scan through, it seems like a rather odd interstitial. You really don't get to fully see Doe's breasts and I think it was mainly included as a quick laugh rather than anything titillating, so to speak. Or maybe some people do find that really exciting, but I think most people would file it under frat boy prankster humor.
I could also see how if this did happen to someone that it may not have been that big of a deal and may have been filed under "some asshole pulled a mean joke on me" without thinking they would actually use that footage. Especially with the covering up and all, because really the point of those videos is "look at what these young woman do (without any help or being paid)!"
Personally I'm always curious as to how those people always end up on COPS looking absolutely ridiculous and giving permission to allow them to be broadcast on television. If I ever did end up on film while somebody made a fool out of me I would probably make myself damn clear that I didn't want that footage shown, but I could also see how that would come secondary to being shocked, surprised, embarrassed, and trying to keep it cool in the middle of a crowded dance club.
Add all that to the fact that that bit of footage ends up mashed between some hard core porn and come six years later you might be really shocked, and embarrassed 1000 times the original event.
posted by P.o.B. at 9:54 AM on July 27, 2010


the spotlight, you the juror could've still made the same statement though.
posted by P.o.B. at 9:59 AM on July 27, 2010


Voluntary intoxication cannot be used to negate the intent requirement of a crime, as you correctly stated. However voluntary intoxication can negate consent, especially in the context of sexual assault or contract formation.

True, and I should have been clearer about that.

I wrote what I did because whether or not the plaintiff consented to being exposed does not seem to have been at issue, as there is no allegation that GGW is responsible for the alleged assault, so whether or not she was intoxicated at the time is probably moot.
posted by valkyryn at 12:13 PM on July 27, 2010


right, that's where i was going with the whole coercion stuff. my legal wheels are really rusty.

valkaryn, i am really unclear as to what standard was applied at trial, but i'm thinking about the juror's statement that she was "playing for the camera." If she's intoxicated, that goes to that fact. The "playing for the camera" is a less reliable indicator of consent if she's intoxicated, arguably. I don't know where "playing for the camera" fits into the legal analysis, or maybe it doesn't and the juror was stupid/misguided/confused/whatever.
posted by angrycat at 3:28 PM on July 27, 2010


My understanding is that it was a statement given after the trial. I think the problem here is in how people are trying to understand "she was playing to the camera" while it's stripped of it's context. Until people specify what they're asking there's going to be an overlay and conflation of the ideas "she played to the camera" = "she wanted to be filmed" vs "she played to the camera" = "she wanted to show off her breasts".
I think trying to understand that would've been a bit more constructive for the conversation instead of having some kind of Three's Company throwback episode with Mr. Roper"s ear up to the door listening to Jack and Krissy talk about broken zippers on apparel or baking confectionery.
posted by P.o.B. at 4:19 PM on July 27, 2010


Actually, aren't wanting to be filmed and wanting to show off her breasts two ideas that are folded into the consent question?
posted by angrycat at 5:04 PM on July 27, 2010


Ick, that was stupid. Never mind. I won't be happy until the GGW gets punched in the penis, anway.
posted by angrycat at 6:43 PM on July 27, 2010


No, not by my understanding of what was being litigated. From what I understand the filming and the assault are two different things. I don't know the legalities but I would assume the former needs to follow the latter for it to be folded into one question, and from what I gather somehow that didn't happen. And that is something I don't quite understand about this; where, when, and how did the assault charge go down? Because, if a specific instance (an assault) wasn't considered to be unlawful, than that instance would be moot to the other question (did she want to be filmed?).
posted by P.o.B. at 6:51 PM on July 27, 2010


An Ass Clown's ReBUTTal: Girls Gone Wild, Jane Doe and Jezebel
This morning I talked to GGW's attorney, David Dalton of St. Peters, who pretty much confirmed the line of questioning above. He added that Jane Doe never contacted police about her alleged assault or never prosecuted the woman (whose identity she knows) who pulled down her top. What's more, the jury could have awarded Jane Doe any amount of compensation from one dollar to $5 million. But in the end, they agreed not to award her one cent.

Why?

"Because the jury did not find her credible," says Dalton.

Today I also had a lengthy conversation with Jane Doe's attorney, Steve Evans.

Evans tells me that Jane Doe's image actually appears on four of Girls Gone Wild's "Sorority Girl Orgy" series, but it's only on one of the DVDs that her top is pulled down. He believes the jury -- which was comprised of seven women and five men -- got it wrong when it ruled that Jane Doe gave Mantra Films (owners of Girls Gone Wild) implied consent to use her image.

"When the someone at Mantra decided to put her in the DVD, that's when the violation of privacy occurred," says Evans. "Our client's position is she was having fun dancing at a club, and someone pulled her top off. Even though something like that doesn't happen on regular basis, it didn't cause her alarm to call police. What caused alarm was finding it on DVD later."
posted by Tenuki at 2:32 PM on July 28, 2010


I think the most relevant part of the article Tenuki cites is the following:
I've now watched the video (you can find copies of it floating around the Internet), and would like to present the facts as I imagine the defense attorney for GGW did last week to the St. Louis jury:

1. Did Jane Doe appear dancing in a nightclub at approximately the 17:49 minute mark of Girls Gone Wild: Sorority Girl Orgy? Yes.

2. When confronted by the camera, did Jane Doe playfully lower her chest (revealing her cleavage), grab hold of her boobs and jiggle her bosom in the direction of the camera? Yes.

3. Did she then mouth the words: "I can't." Yes.

​4. Did Jane Doe then turn to the camera again, grab her breasts once more and again jiggle them? Yes.

5. Did Jane Doe then turn a third time to the camera and pull down her tank top, revealing more of her breasts? Yes.

6. Did at around that same moment another woman appear in the video and place her hands near the top of Jane Doe's tank-top? Yes.

7. Did the hands pull the tank top down revealing Jane Doe's nipples for approximately two seconds? Yes.

8. Did Jane Doe then turn to her friends and laugh following the incident? Yes.

9. Did Jane Doe's entire appearance in the film last less than 20 seconds? Yes.

10. Based on Jane Doe's appearance in the film, do you think she was wronged to the tune of $5 million? No.
So it was only during the third time that she was grabbing her chest and jiggling it for the camera that someone pulled down her top. Her reaction was laughter, as was mine when I read this.

We're speculating about how this went down, but the jury actually saw the tape and didn't think she deserved a red cent. All this talk of assault seems hilariously misguided.
posted by mullingitover at 2:55 PM on July 28, 2010


mullingitover:
I gave you a pile of shit for some stuff you said upthread. I apologized for said shit, as you know.

I'd like to be cool with you man, but when you throw out "hilariously misguided" it makes me think that my apology was a case of me being a pussy.

'Cause there are a lot of folks in this thread who ain't gettin' no hilarity out of this sitch, you get what I'm saying?
posted by angrycat at 4:23 PM on July 28, 2010


I'm sorry if I've caused you to rethink your olive branch, and perhaps I should've kept my moth shut. I just honestly feel that this case has absolutely no element of assault in it, and it tickles my black humor nerve when people use what, in my mind and based on eyewitness accounts, is a nonsensical description of what happened. Obviously you feel differently, but let me ask: have you ever seen or heard of an assault where the immediate reaction of the victim is to laugh to their friends about it?
posted by mullingitover at 4:45 PM on July 28, 2010


All I can tell you is that in my situation, I did not want to go to the police. I just wanted to forget it ever happened. My friends persuaded me to go to the police.

Of course, what happened to me -- well, it involved serious felony charges that could have put the guy away for years, so it's a big difference.

But I think the thing that is not so obvious from your recitation of the facts, is that it's not just the Bad Thing of having somebody rip off your top. Hell, if I was drunk and dancing and not cognizant at that moment that my future's friend's husband was going to be jacking off to the sight of my tits, than yeah, I think that I might offer up some embarrassed laughter.

That's why the discussion is not Forcible Display of Tits = the Bad Thing. It's the Forcible Display + Inclusion in hard-core porn vid = The Bad Thing.

Her tits + her face are going to be jack-off material until the end of time, and that's not what she wanted. That's the problem.
posted by angrycat at 4:59 PM on July 28, 2010


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