Well, She Looked 18!

How old was Justice when she posed for this sculpture?

So, I learn from Slate that Lindsey Bullard was 14 years old and on Spring Break when she was stopped by two men and asked to bare her breasts while they videotaped her. She complied, in exchange for which she was given plastic beads. They did not inform her they worked for Girls Gone Wild and that her image would be used in the videos and on the cover. Which it was. For which she gave no permission and received no compensation. The video is called Girls Gone Wild, College Girls Exposed. Bullard is on the cover, with the words “Get Educated!” across her breasts. She appears bare-breasted for five seconds in the video. So far, the producers of Girls Gone Wild have suffered no criminal or civil charges for this. Which seems…wrong. Like, seriously. Part of the case has just been referred to the Georgia Supreme Court.

There are several things about this case that I don’t understand. This may be because I am not a lawyer. If that is the case, then, lawyers – educate me!

First, I have no idea why criminal charges have not been brought. Apparently, the parties agree about the facts of the case. Is there a statute of limitations issue here?

Second, in suing the producers, Bullard took two approaches. One was to claim punitive damages for sexual exploitation of a child. The other was for misappropriating her image.

Carnes dismisses Bullard’s claim for damages for sexual exploitation for reasons that seem totally bizarre to me. As Carnes notes, according to 18 U.S.C. 2255, a person can receive civil remedies for injuries due to criminal violations of, among other acts, 18. U.S.C. 2252 which states in part:

2252. Certain activities relating to material involving the sexual exploitation of minors

(a) Any person who—
(1) knowingly transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
(2) knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;

But that will not get Bullard damages. Why on earth not? It seems like it should. Apparently because, as Carnes states:

Count II, titled “Exploitation of Children,” simply alleges that “defendants knowingly distributed obscene materials, . . .a child in a state of partial nudity, a product specifically designed for sexual arousal and sexual stimulation.” (Compl. [1] at ¶ 31.) … defendants further argue that a cause of action for criminal behavior that exploits children is unavailable as a private right of action under Georgia law and, even if it were, plaintiff has not produced evidence that defendants knew she was a minor or that her behavior amounted to sexually explicit conduct. The Court agrees with defendants.

I can’t speak to Georgia law. But if her behavior amounted to sexually explicit conduct, it violated federal law. I don’t see how the court could find that her behavior didn’t amount to sexually explicit conduct. Do girls bare breasts for beads thinking it’s for a nude drawing class? Per the ruling:

As a result of the widespread advertising and distribution of the Girls Gone Wild video containing her image, plaintiff suffered great humilation. She was harassed by faculty and students at school.[4] (Bullard Dep. [38] at 31-3, 40-44.) Administrators singled her out for discipline, and one of her teachers indirectly sought an “autograph.” (Id. at 34-35.) In addition to negative remarks, she became known as “Porn Star” by her peers. (Id. at 42.)

That would seem to suggest that some people took her behavior as sexual. Also, on my reading of 2252, “we didn’t know she wasn’t 18!” shouldn’t wash. “Knowingly” seems to refer to the transportation, production, distribution, etc. – not her age.

Carnes states they have violated only 18 U.S.C. 2257, which puts the onus on the producers to check her ID.  But that section is not specified in 18 U.S.C. 2255 under the laws that may get a person civil remedy.

Carnes is allowing the question of whether Bullard should be compensated for the dissemination of her image, and whether a minor can grant consent for use of an image, to move forward. That case was what was heard in the Supreme Court, as it should have been. But it seems unjust, to say the least, that the law can provide neither civil nor criminal penalty for the actual exploitation suffered by Bullard.

Rose Woodhouse

Elizabeth Picciuto was born and reared on Long Island, and, as was the custom for the time and place, got a PhD in philosophy. She freelances, mainly about disability, but once in a while about yeti. Mother to three children, one of whom is disabled, two of whom have brown eyes, three of whom are reasonable cute, you do not want to get her started talking about gardening.


  1. IANAL, but I think there’s a limit on what a Georgia court can do regarding damages for the actual videotaping, since the incident occurred in Florida.
    It seems the case is in Georgia because of the ongoing use of the images and GGW is based in Atlanta (or at least ubersleaze Joe Francis lives here).

    I’d think continuing possession and dissemination of the video would warrant some kind of child porn charges, I can’t figure out why not.

    • Personal jurisdiction issues in diversity cases are typically resolved by state long-arm statutes or by joinder.
      Fed.R.Civ.P. 4(k), 18, 19(a)


  2. The photograph was taken in Panama City, Florida, twelve years ago, so it’s Florida law that would govern the criminal or tort actions arising out of the photograph’s creation. Georgia has no (substantial) interest in the commission of a crime or tort in Florida even if the victim is a Georgia resident. Florida law is almost certainly going to control because the crime or tort occurred there. (There’s a whole body of law that analyzes this sort of question, and I’m leaving out a lot of the analysis, but while I could be wrong, I’m reasonably confident here.)

    The offense could be characterized as any of a number of crimes, I’m sure (lewd act in public, contributing to delinquency of a minor, creation and distribution of child pornography, etc.) but Fl. Stat. 775.15 provides that except for offenses involving the loss of human life, most crimes have a limitations period of no more than 4 years, with tolling of that time not to exceed three years or the attainment of the victim’s age of majority.

    Which means that here, she was 14 (presumably a rather well-developed physique for a 14 year old) when the picture was taken, so the statute could have tolled for as much as 4 years and then been as long as 4 years. So the prosecution would have had to have been initiated before a date we can’t compute exactly, in roughly 2008, in Florida.

    Federal prosecutions typically piggyback their limitations periods on the state laws.

    Civil statutes of limitations are also almost all four years in Florida, with less generous tolling provisions.

    I’m not entirely sure why there are criminal charges against the company in Georgia at all. Since Georgia has no substantial judicial interest in the creation of the photograph, it seems like a judicial interest could only come from the use or distribution of the photograph in Georgia after it was created. So, is this an obscenity prosecution? A child pornography distribution case? If so, that would explain why the defendant’s attorney spends so much time invoking the First Amendment in the linked article.

    • Egads, I forgot to close the link to Fl. Stat. 775.15. Probably because I should be doing actual work right now, instead of blogging.

      Ms. Woodhouse or Dr. Saunders, could you edit the comment to do that for me please?

    • Well you beat me too the answers. Though we can go into whether a Georgia Court has jurisdiction in the matter and do a full Minimum Contacts/International Shoe analysis.

      Is there a plausible defense here for how the pictures were taken? It was spring break and the plaintiff was presumably among a large crowd of college students above the age of consent. Could the camera crew just claim that they had reason to believe she was over 18?

      • Most sex crimes involving a minor are handled on a strict liability basis with respect to mens rea. I’m not admitted in Florida to know for sure, but again I’ll be willing to gamble on that being the law there.

        I presume that indeed it was reasonable for the producers to believe they were dealing with an 18-year-old. But even if Ms. Bullard had shown the producers a high-quality fake ID, that would nevertheless be no defense.

        • I believe the justification for applying Georgia law was that the injury occurred in Georgia. That was where she went to school.

          Can you explain why the federal law allowing a civil suit for exploitation damages was denied?

          • The issue seems to be that the Georgia court did not want to here a case using federal law. The proper place for that would be federal court. The rules for who can bring suit in Federal Court are different. The rules for federal court are:

            1. Diversity of Citizenship (The Plaintiff is a citizen of Georgia, I don’t know what the citizenship of the defendants are); or

            2. Federal Question JDX. This means that the suit arises under a Federal law or the Constitution (not sure if one is involved); AND

            3. The amount in controversy needs to be at least 75,000.01 US Dollars.

            The big problem here is one of tactics and we don’t know what was in the lawyer’s mind. They were the ones who decided to bring suit in state court over federal court. Why they choose Georgia over Florida. They might have very good reasons for their filling decisions or they could very well have made the wrong choice.

          • There are also specific rules about when a federal court uses federal law or state law to decide a case. Generally state courts are not supposed to answer cases involving federal law.

            A lot of the problems with the story seem to be about civil procedure, so very tricky and boring law combined with an emotionally charged story and a very sympathetic plaintiff and not at all sympathetic defendant.

    • I think this is federal question jurisdiction, with the cause of action being 18 USC 2255, which is removed to a state court.
      I believe the argument there would be that the injuries were sustained in Georgia, and thus Georgia has personal jurisdiction by means of its long-arm statute.

      The federal statute of limitations for personal injuries is four years, unless it specifies otherwise by statute (and in some cases, notably RICO, even when it is).
      But I think distribution would be a continuing offense, the same as conspiracy; that the tolling is determined by the last act, and not the first. That’s more typical, though there are a number of exceptions; eg, extortion, bankruptcy fraud, etc.

      I have to question the first two conclusions of the court’s reasoning, but I see the third as perfectly valid– nudity itself does not amount to “conduct.”

      Other than that, I can see the statute only allows for “actual damages,” and there’s no proximate cause requirement.
      I’m not so sure of the adjudication of such matters.

      It could just be a matter of an insufficient complaint which needs to be amended.
      I’m wondering if the case was dismissed with prejudice or without.


  3. Reading the opinion very closely, it appears that a significant part of the explanation is that Ms. Bullard’s attorneys did not seek to state a claim under section 2255, though for additional reasons below, I don’t think they could have. Instead, according to the opinion, “In her effort to reap civil liability from criminal statutes, plaintiff cites to two statutes: O.C.G.A. § 16-6-5,[8] which makes criminal the enticement of a child for indecent purposes, and 18 U.S.C. § 2257, which requires record keeping for certain producers of images depicting sexual activity.” So 2255 and, therefore, 2252, does not appear to have been alleged as the basis for a claim here. I don’t know why it wasn’t alleged, though – there’s a six year statute of limitations, which would have been tolled while she was a minor, and the complaint was filed only 4 years after the videotaping before being stayed for several years due to Francis’ criminal prosecutions in unrelated matters.

    The bigger issue is that there’s only a violation of section 2257, pertaining to recordkeeping (presumably because other parts of the video contain conduct that is indisputably sexually explicit, thereby requiring that there be record keeping for every person appearing in the video), and none for violation of section 2252. Since 2257 is not among the statutes subject to 2255, there’s no cause of action under 2255.

    As for why there’s no violation of 2252 here in the first place, the answer can be found in section 2256, which defines the terms in 2252, including this:

    “‘‘sexually explicit conduct’’ means actual
    or simulated—
    (i) sexual intercourse, including genitalgenital,
    oral-genital, anal-genital, or oralanal,
    whether between persons of the same
    or opposite sex;
    (ii) bestiality;
    (iii) masturbation;
    (iv) sadistic or masochistic abuse; or
    (v) lascivious exhibition of the genitals or
    pubic area of any person;”

    A quick look on Lexis makes clear that for Constitutional reasons, this definition is construed extraordinarily narrowly.

    Additionally, for those same reasons (as well as presumably the rule of lenity), the “knowingly” requirement is deemed to apply to knowledge of age even though the average person would read it as applying only to the distribution, transportation, etc. See, e.g., Tilton v. Playboy Entm’t Group, Inc., 554 F.3d 1371 (11th Cir. 2009). However, “deliberate indifference” constitutes “knowledge,” and given her young age and the fact that it’s not exactly rare for high schoolers and college freshmen to do Spring Break in Panama City, there would have been a good basis to argue that there was “deliberate indifference” here. The bigger problem is that under the definition above, just baring her breasts would not constitute “sexually explicit conduct.”

    While this all has an appalling result in this case, you can sort of see why the statute has to be written so narrowly – otherwise, it would likely encompass images protected by ordinary First Amendment principles (for instance, the old hypothetical of the National Geographic magazine). That said, it may be possible to tighten the language of the statute up to encompass the specific conduct in this case without running afoul of existing First Amendment law. One way that might not run afoul of the First Amendment would be if Congress drafted an amendment to 2252 that says, in effect, “no showing of underage breasts in a video or publication that contains sexually explicit portrayals of adults.”

    • First of all, Mark has read the actual opinion while I simply read news reports about it, so his remarks are entitled to deference. For instance, he spotted in a way I did not that the complaint had been filed in 2008, which seem to have been within the combined minority respose and general limitations laws I described above.

      Mark, do you have any opinion on the choice of law issue? I can see a Georgia court having jurisdiction without much trouble, but it still seems to me because the situs of the underlying event was Florida, Florida’s substantive law would apply. Or is it even an issue at all because Federal law defines the limitations, polling, and repose periods?

      Also, I’m wondering if there was a common law claim for negligence per se. If there is no private civil right of action for the exploited minor but a criminal law prohibits that exploitation, then negligence per se seems to fill in that gap and create a private right of recovery. Again, there’s a potential choice of law issue here, but if Georgia and Florida law are the same we can dodge it.

      • On the choice of law issue, the opinion makes clear that if Florida law applied, there would be no cause of action at all- in fact, Francis himself argued that Florida law should apply on all of the state and common law issues.

        That said, the judge makes a convincing argument for why Georgia law applies. The critical fact there is that although the video was recorded in Florida, neither Francis nor his company were involved in the original recording. Instead, they bought the video from a third party, who was also sued but was dismissed voluntarily early in the case (presumably, this means they reached a settlement). So both the injury and, seemingly, at least some of Francis’ acts giving rise to the injury occurred in Georgia.

        The girl’s attorney acknowledged that her claims for violating criminal statutes were really negligence per se claims, but the problem is that in Georgia (presumably Florida is even less friendly since, again, Francks sought to apply Florida law), you can’t state a negligence claim sounding in tort where the only injury alleged is emotional distress. They do have a negligent infliction of Emotional distress tort, but only if there is an accompanying physical injury claim, which obviously isn’t present here.

        So all that’s left is a common law invasion of privacy claim, where Georgia law is really underdeveloped (apparently, there is no dispute that in Florida, a breach of privacy claim would fail), leaving the federal judge to certify the issue to the GA Supreme Court.

        • One more thing – there is a chance the girl would have had an Intentional Infliction of Emotional Distress claim, but she did not plead it, so the court declined to address that issue.

    • That is really interesting Mark. Thanks for reading and interpreting for me.

      To avoid the National Geographic Problem, could you say nothing about intent? Or is that too nebulous? Or “lascivious” display of boobs?

      • I’d have to do more research next week, but my initial inclination is that it would be really hard to draft an additional intent element for just boobs that wouldn’t be either unconstitutionally vague or unprovable. The approach I suggest above is about as close as I can get to a workable standard.

  4. There must be some way that we can prosecute these people. I mean, after all, being so horrible to a girl via Facebook that she commits suicide is something that we really want to be a criminal act!

    …oh wait, different thing. Sorry.

    • If only we lived in the land of the Truly Free, where outraged swains could throw battery acid in the faces of those girls who spurned their advances, eh?

    • Actually, I remember reading about a case in Minnesota where a fellow was charged with encouraging the suicides of several people via the internet.
      It turns out that Minn. has a law against that sort of thing.
      What made this case interesting was that some of the people whose suicides he encouraged lived in different nations; Canada, UK.

      I believe it’s something of a duty of care tort at its base, in consideration of mentally incompetent persons.

  5. Seriously, how awesome is it that I get to blog at a place where I get to learn so much?

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