6:20am PT by Ashley Cullins
Booze, Sex and Legal Drama: How the 'Bachelor' Scandal Could Reshape Reality TV
To any lawyer who regularly investigates sexual misconduct in college or corporate settings, the premise of ABC's Bachelor in Paradise is a legal minefield: Men and women who were romantically rejected on national television are sent to a Mexican resort and supplied with a seemingly endless well of free booze for a second chance at finding love.
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.
But there are some lines that cannot be crossed, falling outside the scope of the contract. While the show shoots in Mexico, experts say the contracts most likely dictate that any disputes would be subject to California law — which requires affirmative consent for any sexual conduct.
Regardless of the outcome — the matter almost certainly will settle before it reaches a courtroom — and who ultimately is held responsible, Warners and ABC face a possible negligence claim and increased liability moving forward because they have been put on notice that issues of alcohol and consent could arise among the shows' contestants.
Any changes to behind-the-scenes protocol could affect the product onscreen, and an entire genre of reality TV. One source equates such scrutiny to requiring porn actors to wear condoms. But for producers, while the issues involved are complicated and sensitive, the steps forward are fairly clear-cut: weigh the revenue generated by the show, its reception from fans and whether changing the formula to mitigate risk would hurt the franchise.
"It's honestly a risk-benefit analysis," says attorney Ann Fromholz, who specializes in workplace and campus investigations of harassment claims."Is the benefit of having the show in its current form worth the risk?"
Apparently so. Warners on Tuesday announced that production of the show would resume and it will "implement certain changes to the show’s policies and procedures to enhance and further ensure the safety and security of all participants.”
Sopori says immediately launching a thorough internal investigation is the best defense to any potential claim, and she's not surprised the show will continue. “If you have cleared your producers and your cast of any misconduct, to not move forward would suggest you lack faith in the results of the investigation,” she says.
Philip Bonoli, an employment lawyer at Brutzkus Gubner, questions why there would be a need to implement changes if Warners' investigation found no misconduct, but says taking measures to prevent future issues could lower liability in the event of another incident. "They should, and it sounds like they will, institute training regarding harassment or other training to prevent something like this from happening again," he says. "It sounds drastic, but serious thought should be given to restrict the availability and consumption of alcohol by the contestants."
In a guest column for THR, Bachelor in Paradise alum Evan Bass says the contracts make clear that each contestants' alcohol consumption is his or her own responsibility but adds, "Alcohol is treated with the respect it deserves, and sometimes contestants are asked to stop."
One option attorneys recommend, which based on Bass’ statements could merely be a strengthening of the current protocol, is to essentially train the crew to recognize the same signs of excessive intoxication that bartenders look for.
"The show’s producers will want to make certain to step in if activities cross the line from attention-grabbing television to conduct that places the participants in danger and/or violates civil or criminal statutes," says Von Eschen.
Jackson's camp did not comment on Warners' announcement, but Singer says he'll continue investigating what happened on behalf of Olympios. It's unclear whether either of them will return to set — and that will likely hinge on whether either is still considering a lawsuit. Odds are both parties are in negotiations with producers, which will likely address how much footage from that day, if any, will air and if either will continue to be part of the franchise.
"Companies generally do not like to pay someone in exchange for an agreement not to sue and then have that person keep working as an employee," says Fromholz, opining on the likely outcome in a more traditional corporate setting. "Having both contestants return probably would generate big ratings, but it also likely would increase risk to the company."
A version of this story first appeared in the June 21 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.