The company behind ABC's "Bachelor in Paradise" has suspended production of the reality show and sent its contestants home while producers look into allegations of misconduct on the set in Mexico. While Warner Bros. says it is "conducting a thorough investigation of these allegations" and "appropriate responsive action" will be taken once the investigation is complete, it did not offer any details on the allegations.
Reports of misconduct began to surface after a producer filed a complaint questioning whether contestant Corinne Olympios was able to give consent for a sexual encounter caught on tape with fellow contestant DeMario Jackson. A company spokesman confirmed on Monday that the cast was sent home following the production halt.
"Bachelor in Paradise," which is in its fourth season as a spinoff of ABC's "The Bachelor," brings together former contestants on "The Bachelor" and "The Bachelorette" in a tropical location. Its cast was announced last week and the show was set to premiere on ABC in August.
According to the Daily Beast, which provides an array of accounts of the incident, “While this story is clearly still evolving, the fact that these allegations are so unsurprising should be a serious wake-up call for ABC. It’s reassuring that the network will—when threatened with legal action—draw the line at sexual assault. But there’s still the question of the show’s complicity in creating an undeniably icky environment.”
The Rundown: Legally
Legally, the situation at hand could prove thorny should Ms. Olympios take legal action (as it sounds like she is preparing to do) due to the nature of reality television contracts. The contracts that participants sign usually do not place much value on their health and safety, and tend to include very broad waiver provisions, in which contestants agree not to refrain from filing a lawsuit if something unfortunate does, in fact, occur. Kent Weed, President of A. Smith & Company, the production company behind Hell's Kitchen, American Ninja Warrior, and Spartan: Ultimate Team Challenge, said, “These people in essence sign everything away."
Steven Katleman, an entertainment and media attorney, told CNN a few years ago, that most reality shows entail "a lot of emotional distress on the part of the contestants. You have to cover those things in the release; you have to explain to them that they're going to be living in this house in a stressful situation. If you're in a situation where there are potential hookups, you have to disclose to them that it's possible that there will be sexually transmitted diseases. That also has to be included in the release."
Another particularly telling part of most reality television participants' contracts: There tends to be a staple in nearly every reality show contract. Should you choose to go on a reality show, your contract will stipulate that the production company has the right to portray your image in any way, shape or form.
"You're giving up a right of publicity," said employment attorney Kelly Scott. "You're allowing them to use your face and name in the advertising, the promotion, the packaging and the repackaging of the show." And with that comes the very real prospect of being portrayed in an unfavorable light. And, unless you are already a celebrity, you do not have much leverage when it comes to your contract.
So, what typically happens if a show participant attempts to take a matter to court? "In general, when courts are presented with a contract, most of the time those contracts are going to be upheld because everyone knows what's going on," says Eric Goldman, a contract law professor at Santa Clara University Law School. "It's hard to engender the sympathy of a judge when we all know that the person signed up willingly and enthusiastically for a reason that was clearly valuable to the participant."
As for how that translates to potential sexual assault claims is another matter entirely, as no contestant can legally waive the right to not be sexually assaulted, right? That was former Real World cast member Tonya Cooley's claim when she filed a lawsuit against MTV and Bunim/Murray Productions in 2011, alleging she was victim to much sexual abuse during the Thailand season of the The Real World/ Road World Challenge.
In connection with that suit, the standard Real World cast member contract was made public, including required waivers that, "Interacting with other cast members carries the risk of 'non-consensual physical contact' and should a participant contract AIDS or any other sexual transmitted disease during such an interaction, MTV is not responsible."
Cast members are warned that they might die, lose limbs, suffer humiliation and “extreme emotional distress,” and risk contracting a long list of sexually transmitted diseases. And in case that is not enough, MTV makes it clear in the contract that its producers are not responsible for conducting background checks on potential cast members, and even if they do, they are not required to share the results with show participants.
In light of such sweeping waiver terms, there is a potential saving grace for reality show contestants, however. They could - at least in theory - argue that such contracts are unenforceable because the assumption of risk for something like "non-consensual physical contact" is an unconscionable contract term.
(Note: Unconscionability is a defense against the enforcement of a contract or portion of a contract. It essentially claims that a contract is unfair or oppressive to one party as a result of terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power).
It is worth noting that even this is not a surefire claim, as courts rarely find contracts unconscionable. Generally, to find a contract unconscionable the plaintiff must demonstrate absence of a meaningful choice and that the terms of the contract unreasonably favor the party who sets them - neither of which are terribly easy elements to establish.
Unsurprisingly, in response to Cooley's suit, MTV disclaimed liability pointing to “affirmative defenses including Cooley’s assumption of risk, consent, a waiver, and a release." They ultimately settled the lawsuit prior to trial.
As noted in New York University's Journal of IP and Entertainment Law, "Had it gone to trial, could Cooley have successfully argued that the waiver violated public policy or that it was unconscionable? Based on current case law, it is unlikely that she could have succeeded on those claims. This is not to say there were no other potentially successful claims outside the realm of contract waivers that Cooley could have brought."
This likely does not bode well for Ms. Olympios, although she can likely still pursue a (far-less-lucrative) criminal action against Jackson. More to come ...