A Missouri jury has gone wild in a case of involuntary nudity, finding that a woman consented to appearing topless in a “Girls Gone Wild” video by playing to the camera before another person pulled her top down.

The woman, identified only as Jane Doe, had no expectation of privacy, the St. Louis Circuit Court jury declared last week, even though she said “no” when a “Girls Gone Wild” crew asked her to bare her breasts as they were filming at a St. Louis bar in September 2005 and never signed a release allowing any use of her likeness in a video.

Mantra Films and its owner, Joe Francis, have built a soft-porn empire on enticing young women to pose naked for their racy “Girls Gone Wild” videos, often by allegedly plying them with alcohol. Their attorney admitted he was worried before the trial of Doe's case that their unsavory reputation might count against them.

Doe sued Mantra in 2008 for negligence, invasion of privacy and misappropriation of her likeness after a friend of her husband told him he had seen her in the video “Girls Gone Wild Sorority Orgy.” She was seeking at least $2.4 million in damages for post-traumatic stress and psychological injuries.

But the jury, which deliberated only 90 minutes, bought what was in effect a "blame the victim" defense — that Doe consented to being filmed topless by being in the Rum Jungle bar and dancing for the cameraman. Another patron grabbed the shoulder straps of her tank top and pulled them off her shoulders, causing the top to fall down and expose her breasts.

“Through her actions, she gave implied consent,” jury foreman Patrick O'Brien told the St. Louis Post-Dispatch. “She was really playing to the camera. She knew what she was doing.”

The 26-year-old mother of two said she was “flirting with the camera” but “never, ever planned on crossing the line of being exposed in a sexual manner or being on this DVD. I didn't show my boobs. They did.”

Implied consent is consent that is not formally expressed but can be “manifested by signs, actions or facts, or by inaction or silence which creates an inference that consent has been given.” Most states no longer allow implied consent as a defense in sexual assault cases.

According to Doe, she and her friends were not aware “Girls Gone Wild” was taping at the Rum Jungle when they went there during a night out. While other female patrons consented to being filmed topless, Doe demurred.

“The pulling down of Plaintiff's shirt and filming of her bare breasts by the Defendants invaded Plaintiff's right to privacy,” she alleged in her lawsuit.

The Kansas Supreme Court has found that an employee could not sue Boeing for using a photograph of him posing next to an aircraft in an advertisement because he had impliedly consented to the publication of the photograph by admitting that he thought it “might" be published. Johnson v. Boeing, 262 P.2d 808 (1953).

Mantra attorney David A. Dalton argued to the jury that Doe's consent could also be implied because she never tried to contact the cameraman or the company to tell them not to use her image. But that was a far cry from an admission by Doe that she thought “Girls Gone Wild” might publish her image.

“Other girls said it was OK. Not one other one said, 'No, no,'" Doe's lawyer, Stephen B. Evans, argued. “She is entitled to go out with friends and have a good time and not have her top pulled down and get that in a video.”

Mantra has made about $1.5 million from “Sorority Orgy,” in which Doe appears for about 20 seconds. In another case, founder Francis is being sued in Florida by four minors for abuse and sexual exploitation.

By Matthew Heller
7/25/10