50 shades of apps, in terms of consent

Updating document when mood strikes

“No means no” began to give way to “yes means yes” as the credo of sexual consent decades ago, but the shift has been swiftly propelled in recent years by legislation and, most recently, by the #MeToo and #TimesUp movements.

The concept of affirmative consent — the act of giving verbal permission clearly and often during intimate encounters — was pioneered at Antioch College, where an affirmative sexual consent policy was instituted in 1990. It was widely mocked then, but similar policies have since spread to campuses nationwide, and today, the concept is acknowledged well beyond university grounds.

Now, apps aiming to help partners mitigate confusion in the bedroom have emerged, the newest of which approaches consent like a legal contract. LegalFling, introduced in beta last Monday, lets users give explicit sexual consent via a “live contract,” a document that users can continuously interact with and update.

And, yes, these agreements could hold up in court, said Andrew Cherkasky, a former special victims prosecutor who now handles dozens of felony-level sexual assault cases each year as a criminal defense attorney. He stressed, however, that what LegalFling offers are not technically contracts, but documentations of intent, which are legally viable.

LegalFling aims to make the sexual dos and don’ts explicit in a “fun and clear way,” according to its website.

Condom use, bondage, dirty talk, sexting: the app lets users set boundaries before an encounter — boundaries that can be adjusted with a tap and shared with a potential partner. (Sound familiar? Netflix’s “Black Mirror” incorporated a similar transaction in its episode “Hang the DJ.”)

Profile updates will be stored using blockchain technology similar to that used to trade bitcoin, according to Rick Schmitz, a co-creator of LegalFling. The transaction is encrypted, timestamped

and stored. Michelle Drouin, a leading expert on technology and relationships, said the apps are good at documenting consent, but don’t account much for fluctuating human emotions. They don’t necessarily allow for any immediacy of one’s feelings, she said.

Use of the app “has to be planned,” she said, “and it’s really difficult for us to even know how we feel in the present moment, much less trying to anticipate how we might feel an hour from now.”

Schmitz said that a LegalFling agreement does not override someone changing their mind or being too intoxicated, for example, to consent. The company suggests you withdraw consent via the app at that moment, but, of course, that’s not always possible.

If an encounter leaves a user feeling violated, Schmitz said, they should notify the aggressor afterward in a message, and it will be added to the record.

Also possible with a tap: cease-and-desist letters, according to the website.

The creators of LegalFling, part of Dutch company LegalThings, said they decided to apply their technology to sexual consent when, in December, Sweden proposed a law that would require people to get explicit verbal consent before sexual contact.

But Drouin is not sold on apps as a solution to a very human problem. Interacting with an app during a sexual encounter is “completely unrealistic,” she said.

“It would be very awkward within the context of an intimate encounter to be like, ‘Wait a second, I’m changing my mind on the app and also with you,’ ” she said.

More important, she said, the app could persuade someone to fulfill acts simply because they agreed to them in advance.

These digital agreements could certainly be used as evidence of, at the time the button was pushed, what an individual’s intent or desires were, according to Cherkasky. “We already see it all the time in social media or text messages,” he said.

But these agreements do have the potential to be used as a means of protection to an aggressor, he said, especially by a violent and premeditating criminal. It’s very common in domestic violence cases for an attacker to have a “great deal of power over the person and force them to do a number of things,” he said.

Even implying that someone doesn’t have the right to change their mind is a real risk, he said. Though the risk also exists for an accused person, who may have fully gotten consent in the moment even if “the box wasn’t checked.” “It turns consent into a joke, a technicality that people think is black and white or can be recorded in a moment of time,” he said.