Regarding yesterday’s item “Lied about her age to get into wet T-shirt contest”, reader James Ingram wrote to say:
Actually, I think you are off base on the case of the young woman who sued for use of her semi-nude pictures taken when she was only sixteen years old. Protecting minors from the negative consequences of their poor judgment and immaturity is a very traditional function of the law and one that makes good sense. This is why the law sets minimum ages for making life altering decisions such as entering contracts, getting married, having sex or dropping out of school, for purchasing potentially harmful products like alcohol, tobacco and firearms and for engaging in activities like driving and operating heavy machinery that could be dangerous to the minor or others. It is also why we have juvenile courts. Children need to be protected from themselves because they are children, and not fully responsible for their own actions.
Generally we require the adults who interact with minors to verify their age before allowing them to engage in these sorts of activities, and hold them legally responsible even if the minor lies about his or her age. No bartender who served a sixteen year old would be excused because she told him she was “of age”; he is legally responsible to verify her age by seeing proper ID and liable to punishment if he does not do so. The same rule ought to apply to the makers of skin flicks. The film producer took advantage of the poor judgment of an immature (and probably intoxicated) girl and deserves to be held accountable. (I give you that suing the hotel was silly.)
To which I replied:
I can see some point in your comments as regards the possibility of other legal sanctions aimed at the organizers, and perhaps even giving her some sort of right to obtain an injunction against further distribution, but the idea of letting her rake in cash over the incident strikes me as more than a little foolish. The result will be to set her up in an affluent position above her peers who had the good sense not to commit such follies, the sort of young women who are saving fifty dollars a week out of their paychecks as store clerks and waitresses. What sort of lesson does that send? And of course there’s also the grasping nature of the selection of defendants in the case, as you acknowledge.
And Ingram wrote back:
Good point. And you are right that a legal system that has only one answer — award money damages to the plaintiff — creates perverse incentives and rewards bad behavior. Kind of like the AGs’ tobacco litigation in a way. They “punished” the tobacco industry by taking a cut of the take; she punishes her exploiters by making them cut her in on the revenue from her strip show.
Interestingly, in the case of the underage drinking example I used the law would have remedies against both of the parties who behaved badly. The bartender who served the underage girl would face a fine or loss of license, while the girl would face juvenile court proceedings for underage drinking. I think my larger point — that the law should protect children and teenagers from their own folly and sanction the adults who facilitate it — is valid. Your larger point — we shouldn’t reward bad behavior with money even in circumstances where that behavior may be excused by youth and immaturity — is also valid.
10 Comments
Great discussion.
Question: How do you suppose alcohol bottlers have been able to stay out of the targetting scope of trial lawyers? If this girl was drunk, wouldn’t the person who made the product which allowed her to achieve this ‘vulnerable’ condition be liable? One would think those that produce alcoholic products can reasonably forsee the danger. If a cigarette manufacturer is liable for the detrimental effects of someone legally using their product (as intended), isn’t Budweiser just as responsible for the same.
If a football stadium vendor is reponsible for an accident which occurred as a result of him legally selling beer to a patron, doesn’t the manufacturer of that beer share in that liability? When’s the last time a beer manufacturer was a named Defendant in a DUI-related car accident victim case?
I wonder, if I get a DUI and suffer harm as a result (embarrassed, humiliated, lost wages, emotional distress, etc.) would I not have a good case to bring against Miller to compensate me for my injuries? Hmmm… sounds like an easy way to financial freedom.
Jabetha,
I am actually surprised we don’t see more of that – it’s the exact same logic as such suits against gun makers. (Not that I think either type of lawsuit is anything less than abhorent, mind you.)
Back on topic:
If they took her word for her age, then yes, they should be liable (but again, and obviously, not the hotel).
(Aside: sadly, some bartenders hav ben subjct to such penalties even when the underage person had a very good fake ID. Same thing with statutory rape, actully – a guy picked up a girl at a bar, where she was drinking. She had ID saying she was 21. When it turned out that she was 15, he was arrested for statutory rape. Both of those cases are really messed up.)
Complete agrement that she shouldn’t profit from it.
It’s hard to know where to begin replying to your reply to reader James Ingram regarding the wet T-shirt contest. Your points are well taken but tend to ignore the context. When it comes to anything sexual, children (a.k.a. anyone 17 years, 364 days old or younger) are always, always, always regarded as victims, always “damaged” for life, always due any compensation that can be extracted from the other party – unless, that is, the other party also happens to be both under 18 and about the same age. Then sex is just something that teenagers can’t be stopped from doing, so why try.
There are cases where the authorities have gone through the diary of some underage slut and prosecuted every one of her of-age conquests, putting them in prison and registering them as sex offenders, to spend the entire remainders of their lives regarded as subhuman perverts who should be executed or at least castrated to protect children from their predatory ways. What about the girl? Her punishment is to go back home to her mother and resume her lifestyle if her mother can’t control her. Who is the serial predator in this case? Who are the real victims?
God knows there is plenty of truth that forms the basis for the current sex offender hysteria. But a goodly portion comes from countless additional examples of a legal system foul with hypocrisy and corruption. I would love to see Overlawyered address that angle once in awhile.
Overlawyered reaches the right conclusion, although my reasoning is different.
We use CRIMINAL law like statutory rape to protect minors from their own bad decision.
But we don’t use CIVIL law to do that as much. Consent can exist for purposes of tort law even where it is absent for purposes of criminal law.
In civil law, unlike criminal law, there is no fixed minimum age of consent.
For example, some states deter minors from engaging in conduct designated as exploitation of the minor (such as statutory rape) by either barring them from bringing a damages claim for the consensual sex (as one California Court of Appeal did) or by reducing their recovery by the amount to which they were culpable in the statutory rape (as a Louisiana court did).
Remedies for statutory rape in such jurisdictions are thus more limited in the civil context than in the criminal context to discourage minors from engaging in the prohibited behavior.
By analogy, this young woman should not have been allowed to bring a civil action suing over the wet T-shirt contest she willingly engaged in, since that gives her an incentive to do it again.
That is so even though the government might have the power to fine the makers of the video of the contest for failing to check her age.
(For citations to cases in which plaintiffs were barred from suing for statutory rape, or had their recoveries reduced because of the consensual nature of such sex, see the brief for the prevailing respondent James Crawford in United States v. Morrison, 529 U.S. 598 (2000), which overturned the civil tort remedy contained in the 1994 Violence Against Women Act).
Wouldn’t it make more sense to drop the civil suit and prosecute the distributors of the pictures for child pornography?
A little while back, I wrote a student note on this issue; Naked Before the Law: Reality Porn and the Capacity to Contract, 11 Cardozo Women’s L.J. 353 (2005). The note has all the information better-organized than my memory, but to summarize, repudiation of the contract due to minority is the only valid theory for most who appear in this sort of video.
If one is in a public or semi-public place where videotaping is occurring, there is no tort defense without a statute like N.Y. Civil Rights L. § 50. Even with such a law, there is a broad First Amendment exception that courts have found to include magazines such as Celebrity Skin. There is no false light or defamation because the young person did what is on tape. There is no invasion of privacy because, absent an express commitment not to use the tape, there is no reasonable expectation of privacy.
The age of the plaintiff, outside of contract, is mostly irrelevant because child pornography and public nudity statutes are written in such a way that mere breast-baring will not likely trigger them.
Intoxication will not matter unless the videographers happened to use the intoxication to lead young women aboard a sea-going vessel; then it falls under the shanghaiing statute. Otherwise, the state of the law requires one to black out before intoxication matters.
Even if the young person was young enough to repudiate the contract, there’s no reason she should get millions of dollars. The value of her performance (if we consider it an acting job) is at most $500 according to Screen Actor’s Guild guidelines. After a trial, one could restrain publication of further videos, but that usually is of no benefit to the plaintiff and little detriment to the publisher, so it’s not worth millions of dollars. Bounty-seeking should be impossible on these facts.
Wouldn’t the venue and the film producers be subject to 18 USC 2257 which requires proof of all models’/performers’ age to be kept on file for 7-10 years? Seems that’s the way to prosecute them.
“Protecting minors from the negative consequences of their poor judgment and immaturity is a very traditional function of the law and one that makes good sense. This is why the law sets minimum ages for making life altering decisions such as entering contracts, getting married, having sex or dropping out of school, for purchasing potentially harmful products like alcohol, tobacco and firearms and for engaging in activities like driving and operating heavy machinery that could be dangerous to the minor or others. It is also why we have juvenile courts. Children need to be protected from themselves because they are children, and not fully responsible for their own actions.”
If this is truly the case then why do we have 13 and 14 year old children being tried as adults instead of juviniles?
About 18 USC 2257:
“Sexually explicit conduct” does not cover wet T-shirt contests and breast-baring.
Furthermore, many of the producers of videos of young women doing ill-advised things while drunk claim to be “documentary producers” and therefore get into a newsworthiness First Amendment exception to much of the obscenity regulation.
Blawg Review #56: Sex, Virtual Weddings, and Baseball
It’s been a busy week in the legal blogosphere. We’re a committed group blog here at Point of Law, so we teamed up to cover the many topics summarized below. A big thanks to Larry Ribstein, Tom Kirkendall, Ted Frank,…