Concerts in California may be on hold because of COVID-19 gathering restrictions but health officials believe things will return to normal by late summer. That doesn’t mean the courts are closed, however, and this month a woman sued the promoter of Napa Valley’s BottleRock and the company hired to provide insurance for the event.
BottleRock brings in over 100,000 people each year. In 2019 the event featured the Imagine Dragons, Neil Young and Mumford & Sons. It’s supposed to a time of fun and great food too. But for Jane Doe* (we never print the names of sexual assault victims unless already public), it became a terrifying experience.
In this post we discuss what happened to Jane and how sexual assaults at concerts have become a widespread problem. First, back to Jane’s story.
According to Jane’s complaint, she was at the concert on May 25th, 2019. Around 10:00 pm Jane needed to use a restroom and found a group of porta potties. Finding an open unit, she entered and locked the door. As she attempted to use the facility, a man reached in from a hole cut in the plastic and grabbed her unclothed crotch.
Jane screamed and immediately fled and found security. Unfortunately ,they were dismissive of her complaints. She then contacted police.
An investigation found a plaster saw nearby and that someone had tampered with multiple porta potties.
If there is any good news in Jane’s story, police caught and arrested Peter Fontes, age 42, of Richmond, California. He was arrested the next day after returning to the scene of crime. A Napa County jury later convicted him of two counts of sexual penetration by force, one count of burglary and vandalism.
Police in Alameda County say he is a suspect in a similar crime there at street fair. In January 2020 Fontes was sentenced to the maximum 16 years and 8 months in state prison.
The Napa Valley Register reports was arrested for an almost identical offense in Brazil in 2018. At the time of his arrest there he claimed to be a “bishop of the Ministry Attracting Nations to the Altar of God.” It is unclear why he was in California so shortly after his arrest in Brazil.
Sexual Assaults at Festivals and Concerts
We have been covering stories like this for quite some time. Unfortunately, these assaults happen far more frequently than are noted by mainstream media. (See our cornerstone post Sexually Assaulted at a Concert – What Should You Do for detailed coverage and some shocking statistics.)
A University of Nevada at Las Vegas survey in 2018 showed that 92% of women report being the unwanted recipient of sexual harassment or abuse at a concert, 55% were groped and 3% reported being assaulted. Vice claims there is a rape culture at concerts.
Why is this important?
Although the public may have no idea just how bad sexual misconduct is at concerts, promoters certainly do. That is what triggers their duty to provide adequate security. When a woman or child is assaulted, security and the promoter also have an obligation to investigate and take the matter seriously.
No promoter can be held responsible for every unfortunate event that happens at a concert but they have a duty to take steps to address known risks and sexual misconduct is certainly a known risk.
Jane Doe sued both the promoter of BottleRocks, Latitude 38 Entertainment, LLC, as well as the companies that provided security for the event.
Arbitration and Sexual Assaults Claims Against Concert Promoters
In recent years there has been a disturbing trend of companies that force consumers to waive their right to a trial. The Constitution gives every American the right to seek redress of their grievances by a jury of their peers. The 7th Amendment of the Constitution extends that right to civil disputes.
The Federal Arbitration Act allows private parties to settle disputes through arbitration. While we have nothing against arbitration, we do have serious concerns when consumers are forced into arbitration against their will. We also don’t like how companies hide arbitration clauses in the fine print. The U.S. Supreme Court has ruled that people can waive their Constitutional right to sue.
After a series of sexual assault lawsuits against concert promoters, the promoters began quietly hiding mandatory arbitration agreements on their website. Most folks who buy a concert ticket never go to the website and read all the fine print. Even lawyers don’t!
Here is the arbitration clause in effect when Jane purchased her ticket:
“Notwithstanding anything contained herein to the contrary, You agree that any disputes arising from or relating to Your purchase of Tickets hereunder or any related transaction relating to the use of the Site or its services or any relationship or dispute between You and Latitude 38 or You and any company or person employed by or which is affiliated with either Latitude 38, this Agreement and/or any policies or practices of any of the above mentioned companies or persons (a “Dispute”) shall only be resolved subject to FINAL AND BINDING ARBITRATION as set forth in this section, and may only be resolved through an individual arbitration governed by the Federal Arbitration Act or by the applicable sections of California law to the maximum extent permitted by applicable law. THE PARTIES TO THIS AGREEMENT GIVE UP THEIR RESPECTIVE RIGHTS TO GO TO COURT in connection with any Dispute and that such rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. NO PARTY TO WHICH THIS AGREEMENT APPLIES SHALL BRING OR PARTICIPATE IN ANY CLASS ACTION OR OTHER CLASS PROCEEDING IN CONNECTION WITH ANY DISPUTE.”
This arbitration clause isn’t on Jane’s ticket – or anyone else’s ticket. It is on the BottleRock website. And it is in number 8 font and very light blue print on a white background making it difficult for anyone to read. (We believe BottleRock’s disclosures violate California and federal accessibility and ADA regulations.)
If this isn’t bad enough, the agreement also purports to cover the security company as the language says any company employed or affiliated with the promoter. If the court upholds the contract provisions, Jane could be precluded from suing either the promoter or the security company.
Is Jane bound by the arbitration? We hope not. Finding justice for sexual assault survivors is already difficult. Trying to limit access to the courts makes the task even harder.
Concert promoters and others like mandatory arbitrations because the proceedings are held in secret and not open to public scrutiny. Promoters don’t want the dirty secret of sexual assaults at concerts and festivals becoming public.
Our experience also shows that single arbitrators like what is required by BottleRock’s ticket policies award less money than a jury selected from the community. An arbitrator knows that he or she is dependent on getting repeat business from the business community. BottleRock may have dozens of claims to arbitrate but Jane Doe will likely only have one in her lifetime. Their bias is almost always in favor of the business.
The Future for Jane
Jane’s lawsuit claims, “She has suffered and continues to suffer from serious physical and emotional symptoms including severe chronic back, hip and leg pain, depression, anxiety, sleep disturbances, and post-traumatic stress disorder.”
She also says that while she once was an outgoing person, she is now more reserved and fearful of going out to public events. Her story and feelings are unfortunately way too common.
Were You Groped or Molested at a Concert?
We hope more women come forward and report sexual misconduct at concert venues, festivals and street fairs. Rape culture at these events is not acceptable. With more media attention and more lawsuits, concert promoters and the security companies they hire should finally get the message.
Concert promoters are motivated by publicity and money. When too much bad publicity occurs or their insurance carriers refuse to insure the events, things will improve.
If you have been molested or assaulted at a concert, you are not alone. You may be entitled to significant compensation for pain, emotional distress, counseling expenses, humiliation and even lost wages if you are unable to return to work because of the trauma.
To learn more, visit our cornerstone content on rights of sexual assault survivors and sexual assaults at concerts. To see if you have a claim, contact us online, by email [hidden email] or by phone at . All inquiries are kept strictly confidential.
Attorney Brian Mahany, is a former police officer, prosecutor, director of the Family Violence Project and volunteer at the Sexual Assault Crisis and Support Center. More comfortable speaking with a female lawyer? Just ask.
*Booking photo from Napa County