So it is no surprise to legal observers that a recent allegation of sexual misconduct on the set involving questions about alcohol and consent could reshape the reality television genre — even though Warner Bros. TV, which produces the show, announced on Tuesday it found no evidence of wrongdoing in its internal investigation.
A trip to paradise became hell for two BIP contestants, Corinne Olympios and DeMario Jackson, who on June 4, the first day of filming, engaged in sexual activity while under the influence of alcohol. Confirmed details are scarce amid conflicting accounts, but according to multiple reports attributed to sources close to the situation, the pair began kissing and then moved to the pool, where the intimacy escalated but did not include sex. The following day, a producer on the show lodged an internal complaint that sparked an immediate investigation by Warners.
In a statement, Olympios said she doesn’t remember what happened, but sources insist the fan favorite appears to be “lucid” in the footage from that day, and neither party thought anything questionable had happened between them until they were later filled in by producers and castmembers.
So who, if anyone, is potentially liable?
“Anyone can unwittingly commit sexual assault if there isn’t informed and proper consent,” says criminal defense lawyer Priya Sopori. Here, because both parties had consumed alcohol, there is a chance that each was too intoxicated to realize the other couldn’t consent. Sopori explains that, while it might sound strange, “It’s possible that both parties can claim that they were sexually assaulted if they were both in a position in which they were unable to give consent.”
Olympios, who is represented by litigator Marty Singer, says she holds the show responsible for what happened, not Jackson. For his part, Jackson says he has lost his job because of the damage this situation has caused his reputation.
Sopori notes that sexual stereotypes can lead the public to place blame without having all the facts. “The assumption is that, in order to have an erection, the man has to be sexually aroused and provide consent,” she says. “Going through the motions does not equal consent.”
Unlike the scenarios that lawyers routinely investigate, this case involves people who are filmed 24/7. Warners says it won’t release the tape out of respect for the privacy of those involved. “We can say, however, that the tape does not support any charge of misconduct by a cast member,” said the studio in a statement. “Nor does the tape show, contrary to many press reports, that the safety of any cast member was ever in jeopardy.”
It remains to be seen whether ABC will air any film of Jackson and Olympios from day one. “Putting aside constraints of the FCC, ABC has every right to air the non-sexual footage,” says Sopori.
Even if no evidence of wrongdoing is present on the tapes, this situation brings to the forefront questions of responsibility. “It raises the issue of, where is the line and at what point do producers have to step in and not let the story unfold, even if it might make for great TV,” says Los Angeles-based employment litigator Lisa Von Eschen.
It’s a virtual certainty that the contracts signed by contestants indemnify the show and its staff from legal liability and require that any disputes be resolved in confidential arbitration.
More Details @ The Hollywood Reporter