<p>^ The jury said her being in the club was “implicit consent” to be filmed. If she knew they were filming, and they had signs on the door like “By entering this club, you agree to let Girls Gone Wild use your image”, maybe. But that’s not consent to be sexually assaulted, have it filmed by a porn corporation, and sold in mass market videos.</p>
<p>Consent can be implied, but getting written consent is always better. Consent is implied from behavior so I assume it was implied because she chose to remain in the club knowing who was filming and because she was dancing and posing for the camera. I assume the argument would be that as soon as her top was pulled up, she revoked her consent and it is a jury question as to what would constitute that revocation. Did she scream and try to cover herself and run away in horror? I would think that consent to be photographed does not indicate consent to publish, unless the person knows the intent is to publish. I think she would have a hard time arguing that she didn’t know what the plan was for the video.</p>
<p>I doubt GGW caused or encouraged the sexual assault. Can they profit from a sexual assault? I’d say no but the legal system, at least in this case, says yes. It might be good to remember news organizations regularly profit from images and videos depicting people being assaulted in various ways.</p>
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<p>Then you miss my point – we don’t know what the video shows. We know how the news report characterized the video – and don’t even know the source of that characterization. </p>
<p>We don’t know whether she made a strong, unequivocal statement, accompanied by signs that she was clearly upset … or whether she initially said “no” but laughed it off when her friend pulled down her top. </p>
<p>The jury did see the video and the context of the video was likely very important to their determination. The plaintiff’s conduct before and after the incident and her response at the time would be important to determine both her credibility as a witness, and whether or not she gave implicit consent. </p>
<p>Again, I don’t know – I didn’t see the video. The jury did. Juries sometimes get things wrong, but a lot of times they get things right.</p>
<p>As I said, it isn’t just GGW or other shows. A compromising photo of Michael Phelps cost him quite a bit of money. Facebook, Myspace and other blog entries have hurt any number of people. You don’'t have to have it on your page for it to hurt you either. It can be on someone else’s account who is not as careful as you and anyone who clicked a photo at any given time. It’s really scary how fast thing can go around these days with the cell phone and computer.</p>
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<p>They did tough. GGW is well known for verbally encouraging people to take off their clothes. Clearly, that encouragement was the motivation behind the friend pulling down the plaintiff’s shirt.</p>
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<p>No means no, it doesn’t matter how it is said. All accounts report that on the tape the plaintiff says no several times after her shirt is pulled down.</p>
<p>Among other things, the article tells us nothing about the plaintiff’s behavior after her shirt was pulled down. As calmom says, it’s always risky to second-guess a jury, which sees all the evidence (and which may not believe some of the testimony).</p>
<p>Agree with Calmom…excellent posts. An acquaintance of mine was on a very high profile jury once. Later he basically told me, without saying much in terms of facts, exactly what calmom pointed out. The jury is given specific instructions and can only rule based on what the law is and what they have been presented with.</p>
<p>Pea, I haven’t seen any account that says she said “no” after her top was pulled down. She said “no” when asked to pose with her chest exposed. </p>
<p>I really don’t want to defend GGW - they are sleazy and definitely take advantage of young, mostly intoxicated, women. </p>
<p>However, I have to agree with Calmom that, since none of us have seen the video, it is difficult to second guess the jury. I could very easily argue the other side of this too. I would say that her saying “no” when asked to pose negated the implied consent and meant she was not agreeing to be filmed bare-chested even if someone else pulled he shirt up. I would compare it to being at an auction and the person behind you grabs your hand and sticks it into the air. You knew you were at an auction where things were being sold, but are you on the hook for that $1m painting?</p>
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Maybe, if you didn’t immediately tell the auctioneers that you didn’t intend to bid. That’s another fact we don’t know–did she go up to the GGW people and tell them she didn’t want that on film? I recognize she shouldn’t have to do that, but it’s part of the entire fact pattern that we don’t know.</p>
<p>Somewhere out there is a photo of me completely naked, taken from the back, as I ran across the MIT campus in 1974. I’ve seen the picture, once, a long time ago. To my knowledge, it’s not on the internet at this point, but… I was there voluntarily, it was a public place, and I knew the risk was there. I really can’t complain if it becomes public. I’d rather people didn’t know I was stupid enough to run barefoot through snow, but oh well.</p>
<p>Without knowing all the facts in the case, the young woman appears to have been in a bar knowingly where such things are filmed. Yes, it’s poor judgement, but I don’t think she can claim that she didn’t know it could happen.</p>
<p>When I saw the headline to this post, I was afraid it would be something truly awful. While having your breasts in a GGW video might be humiliating–not least because the whole world would know you were stupid enough to be there–breasts are not really that big a deal. We all know who has them. Men go topless all the time! (I’ll point out that, not that long ago, that was considered scandalous too.)</p>
<p>Exactly Hunt. </p>
<p>I’m also interested in the damages aspect of the case. It seems the $5m she asked for was for something called “diminished enjoyment of life.” We never put that in pleadings when I practiced but I believe it is another way of saying, in this case, that she is embarrassed.</p>
<p>Edited to add - along those lines, dmd77, I am surprised to see some people describe this as porn. I’m not sure if they’re kidding or have never seen porn.</p>
<p>If I were the defense lawyer, I would also point out that the plaintiff was (apparently) dancing in front of the GGW camera in a tank top but no bra.</p>
<p>Oops Hunt - you’ve crossed the line now. If I had been on the jury and leaning towards the defense, that defense would have ****ed me off.</p>
<p>I don’t mean to be so argumentative with everyone and I agree that the plaintiff exercised terrible judgment when remaining in the bar while GGW was there. But from the original article</p>
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<p>When asked to show her breasts she said no. Calmom is right, I’m not sure how she reacted after her top was pulled down. The fact that the company usually gets women to sign consent forms or give verbal consent on film says that they know there is a legal issue involved here. I guess their interest in showing this particular footage superseded their having not gotten consent in this case.</p>
<p>I don’t mean to second guess the jury. It’s their opinion, they’re entitled to it and it’s the one that matters. I also haven’t seen the video, but I wonder if seeing the plaintiff dance for the camera might serve to cloud my judgment to the facts of this case. Would I be so put off by her behavior that I would ignore that she said no to having her breasts filmed? Would I also note that she wasn’t wearing a bra and would I somehow decide that was relevant?</p>
<p>If I only gave it 90 minutes like the jury did I might. The jury foreman was quoted as saying</p>
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<p>He didn’t approve of her behavior prior to her top being pulled down, I don’t either. But is that relevant to the issue of whether she gave consent to having her breasts filmed? I think the jury should have deliberated for longer than 90 minutes so as to be sure they were ruling on the facts of the case rather than the plaintiff’s demeanor.</p>
<p>90 minutes is not really that short for a jury deliberation. I suspect that they were told to determine whether, taken as a whole, the plaintiff’s actions constituted implied consent to being filmed topless.</p>
<p>I can easily imagine scenarios in which the jury’s decision was either outrageous or completely reasonable, depending on what they saw on video and heard in court.</p>
<p>If, as the newspaper reports, the woman said “No, no!” as her shirt was being pulled down, and did not continue dancing, then it’s a horrible jury verdict and completely of a piece with common “she asked for it” verdicts in rape cases. Implied consent to appearing topless in a soft-core porn video by being present in a bar where the film crew was and dancing? No way that’s the law.</p>
<p>Of course, jury verdicts aren’t generally appealable, even if the foreman says it was decided on an illegitimate ground. However, I wonder what the jury was instructed. If the judge instructed the jury that they could find implied consent from presence and dancing, then that’s appealable. It’s tough, though, because implied consent is a tricky thing, very fact-specific, and the law probably IS that implied consent would be enough. If I were the judge, though, I would have been very tempted to direct a verdict for the plaintiff on this issue. If someone says “No”, and they don’t have actual consent, they shouldn’t be putting it in their video. But that would require the judge to go out on a limb, and that’s not what judges do.</p>
<p>On damages, however, the $5 million claim was ridiculous. I wonder what GGW offered to settle this case – I’ll bet it was more than the actual damages a jury could find. This case was essentially a private criminal action, looking for punitive damages. That’s possible in our system, but our civil courts don’t do a great job with them, and there’s lots of unfairness possible in either direction.</p>
<p>Good luck on getting rid of implied consent. It is very well established in American law. And, it is almost always a fact issue, meaning the jury decides the issue.</p>
<p>When a male fathers a child and attempts to avoid parental responsibility for that child by arguing that the female told him that she had used contraception so he need not bother and she hadn’t, he LOSES even if she intentionally lied. Have sex, have baby, have responsibility.</p>
<p>New rule–don’t go in a bar where you know GGW will be filming [BIG SIGN ON THE DOOR that you consent to the use of your image] if you don’t want the images packaged and sold. </p>
<p>I seem to recall that Mid-America wasn’t very sympathetic to a stripper who sued a silicone implant manufacturer on facts that had uniformly gotten housewives substantial money judgments.</p>
<p>^ Dad made decision to have sex. Sex means that you can have kids.
Woman made a decision to dance in a bar. That does NOT mean that she gives consent for people to make money off of her naked chest. HUGE difference IMO.</p>
<p>Implied consent to be filmed with her clothes on, sure. Implied consent to be filmed with her clothes off, when she didn’t consent to having them taken off-- no way! </p>
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<p>And therefore she consented to having her clothes off? What?! I’m with Cartera. If I’m on the jury and the defense lawyer says that, I’m thinking, “Five million damages? How about SIX million damages?” Mere words are inadequate to express my fury that anyone could imagine that wearing no bra and dancing constitutes consent to being filmed with one’s clothes off. Six million dollars? No, make it ten.</p>