Last week, news reports exploded about the television show Bachelor in Paradise, a reality show about contestants finding love. It was alleged that one of the contestants was too drunk to consent to a sexual encounter with another contestant. The whole thing was caught on tape, and soon after the tape was viewed production was halted. TMZ reports that the contestant’s boyfriend believed “she was way too drunk to give consent, and strongly believes producers and medical staffers should have intervened.”
The news story is highly controversial and has dominated headlines. The headlines have hit a nerve, and have sparked dialogue about what a consensual sexual encounter looks like. And begs the question “what does consent mean in a show that creates the conditions for sexual encounters?”. E.g. feeding alcohol to contestants and encouraging certain behaviour. So if the show creates the conditions for the encounter, then what responsibility do the producers have? Where does personal autonomy begin and end?
As of this week, Warner Bros has determined that no wrongdoing has taken place. In response, the contestant Corinne’s lawyer has remarked: “It needs to be made clear that the production of ‘Bachelor in Paradise’ was shut down because of multiple complaints from ‘BiP’ producers and crew members on set. It was not shut down due to any complaint filed by Corinne against anyone. It comes as no surprise that Warner Bros., as a result of its own internal investigation, would state that no wrongdoing has occurred. Our own investigation will continue based on multiple new witnesses coming forward revealing what they saw and heard.”
Based on the reports of further investigations, I predict that the contestants’ demeanour on the video will be examined ad nauseam. In the article “Regulating Inductive Reasoning in Sexual Assault Cases“, Professor David Tanovich addresses demeanour evidence in the context of sexual assault proceedings. “The problem with demeanour evidence is at least two-fold. First, it assumes that there is a “normal” range of reaction to highly stressful situations that is applicable to all individuals. Second, demeanour evidence assumes that outward appearance accurately reflects an individual’s state of mind or emotional state.” (R v Trotta, 2004 CanLII 34722 at para 40)
Professor Tanovich remarks are poignant and should be kept in mind as this saga unfolds and the public dialogue continues about sexual assault:
Sexual assault trials pose significant and unique challenges for lawyers, judges and triers of fact. The vast majority of sexual assault trials turn on an assessment of credibility and/or reliability and this requires reliance on inductive reasoning—assessing whether the evidence is consistent or inconsistent with common sense, logic and human experience. Justice Rosenberg’s decisions highlight the inherent dangers in this context, including using generalizations that are grounded in discriminatory or unreliable assumptions about human behaviour. He reminds us that we must always be vigilant in identifying the potential and likelihood for these assumptions to influence our decision- making and to take steps to better inform both our lawyering and legal determinations. These steps include: (i) learning from our mistakes; (ii) an awareness of the relevant literature on rape myths and stereotypes; (iii) clearly articulating why we have come to a conclusion about why the evidence is or is not credible or reliable; (iv) ensuring that our assessments are grounded in the facts of the case; and (v) in some cases, relying on the evidence of an expert.
(Views are my own and do not represent the views of any organization.)