Consent & Videotape

Sometimes, you hear something that really depresses you. Like this, for instance.

The story is put succinctly here:

STLToday reports that the woman, identified only as Jane Doe, was dancing in at the former Rum Jungle bar in 2004 when someone reached up and pulled her tank top down, exposing her breasts to the "Girls Gone Wild" camera. Jane Doe, who was 20 at the time the tape was made, is now living in Missouri with her husband and two children. She only found out about the video in 2008, when a friend of her husband's saw the "Girls Gone Wild Sorority Orgy" video and recognized her face. He called up her husband, and in what has got to be the most awkward conversation ever, informed him that his wife's breasts were kinda famous.

The woman sued Girls Gone Wild for $5 million in damages. After deliberating for just 90 minutes on Thursday, the St. Louis jury came back with a verdict in favor of the smut peddlers. Patrick O'Brien, the jury foreman, explained later to reporters that they figured if she was willing to dance in front of the photographer, she was probably cool with having her breasts on film. They said she gave implicit consent by being at the bar, and by participating in the filming - though she never signed a consent form, and she can be heard on camera saying "no, no" when asked to show her breasts.

Now, I am sure I am not alone in finding this troubling. Very troubling. If nothing else, how does this fit with the idea that we'd all like to put across: that consent is vital when it comes to sex, or sexual matters?

Firstly, I was under the impression that you had to get a consent form for anything appearing in anything (4:56 into this video). Is all that effort for nothing? It would appear to be, and so it seems I can go out and film what I like. You might say that this is a small point in the context of the whole story, and you'd be bloody well right (consider this a run-up), but it does beg the question: "what kind of legal ground is this ruling based on?"

The jury foreman, Patrick O'Brien, explained that it was perfectly justified as "through her actions, she gave implied consent". Implied Consent??! I admit I haven't seen the tape (for fairly obvious reasons), but, by all accounts, she is heard to exclaim "no, no" on being asked to reveal her breasts. Surely any implicit consent is overruled empirically by the CLEAR FUCKING EXPLICIT STATEMENT SHOWING EXPLICITLY A LACK OF CONSENT. It seems that you can be done for a clearly ironic joke because of its literal meaning, but in a case like this, it's all about reading between the lines!*

Ah, wait! I forgot that she was dancing. AT A PARTY! I would say that, on the whole, that is the single most sane place to dance. Honestly, try it anywhere else -- on a plane, for instance, or at a funeral -- and people may reasonably question your motives. But at a party, you're often seen as unusual if you don't dance (believe me).

This decision is a travesty. The only positive that we can take from it is that the incident ended with just the exposure of breasts, rather than anything worse, but it's not hard to see where it could lead. As PZ Myers put it:

If you're willing to dance, you're willing to be stripped of your clothes. And presumably we can carry this a little further and reason that if you're naked in a bar, you've consented to sex, although fortunately it did not go that far in this case.

The fact that there are people out there defending this decision -- a decision by jury -- genuinely worries me. I remember when I first heard the phrase "No Means No", I thought it laughable in how obvious it was (I was young, and so didn't really understand what 'rape' was). But if "No" was clear enough then, how on earth did it come to mean "yes" in court?

*I know they're two different courts and countries, but it was hardly the first instance of statements being taken too literally.

UPDATE, 23:51: As Jack of Kent points out on twitter, whilst the story may be accurate, "my experience is there can be a disconnect between the report and what happened", and that "Bad law stories are sadly as common as bad science stories." I feel that this blog covers subjects beyond the individual case reported, but it is an important thing to take into consideration. For proof of misrepresentation of legal cases in the media, check out his excellent series on the McKinnon case.

Reactions and Overreactions

Hello all,

The big news today is that Gordon Brown has been caught on tape describing a woman he met on the campaign trail as "bigoted". This comment was made after she asked about Eastern European immigration, describing them as "flocking".

Now, these remarks are enough to make a lot of people uncomfortable, me included. To call them bigoted would be something of an overstatement, but would be understandable, say, at home with friends.

This is why the story is so problematic. Brown was recorded, without his knowledge, and then the tape of his private conversation was made public for all to laugh at him. Private comments should not and must not be what we judge our politicians by, any more than extra-marital affairs or any other affairs of their private life.

The greatest hypocrisy of all, however, is that this tape is defended by the people who would cite Orwell to describe the current "Nanny State" (a term which, by the way, I despise). The people who would remove every CCTV camera and every form. Regardless of your views on these issues, the double standard of guarding your privacy so rigorously whilst ignoring that of others is intolerable.

One final point: When Chris Grayling's remarks on homosexual couples and B&Bs were leaked, I was as keen to criticise them as anyone. However, this is an issue that directly affects the voters. Grayling was making an ideological point on his view of Tory policy. Brown, on the other hand, was offering a (strongly worded) opinion on one individual. This was not in the public interest, and so I see no reason why it should affect anyone's opinion of him.