New apps set rules for intimacy, consent
But consent-by-click approach can be awkward, comes with its own risks
You’re getting hot and heavy with a new “friend” and thinking about hooking up — who wants to break the mood and talk about consent?
Guess what: Now there’s an app (or two) for that.
It’s crucial for anyone to discuss what level of physical intimacy they feel comfortable with and where they want to draw the line. As an avalanche of sexual harassment stories and Me Too anecdotes has made clear, such consent is often not asked for, given or agreed on. One in five women (and one in 16 men) say they have been sexually assaulted while in college, according to the National Sexual Violence Resource Center. Of those assaults, 63% were not reported to authorities.
At the core of many an accusation is the question of consent. Those accused of assault often counter the intimacy was consensual but hazily re- membered. Their alleged victims say no such agreement was made. The growing awareness of sexual assault on college campuses prompted California and New York to mandate a “yes means yes” standard for universities, meaning if an agreement to physical intimacy didn’t happen, it wasn’t consensual. But such a standard is far from widespread, and even where it is, relies on both parties’ verbal testimony.
Smartphone apps We-Consent and Sa-Sie were among the first to attempt a digital solution with apps that allowed partners to check “yes” when they agreed to sex. Now, LegalFling is joining the consent-by-click market, with the added cachet of being blockchainbased. The company says it will be available for download in the Apple and Android app stores in the next month.
Sure, it can be awkward to stop and talk about consent in the heat of the moment, which is why partners rely on
non-verbal cues to give and interpret it. A 2015 Washington Post- Kaiser Family Foundation poll of current and recent college students found that at least 40% said undressing, getting a condom or nodding yes establishes consent for more sexual activity. At the same time, at least 40% disagreed, saying those same actions do not translate into consent. It’s to that kind of confusion LegalFling co-founder Arnold Daniels hopes folks will say, “Hey, first let’s fling” before they get down to business.
By that he means prospective sexual partners will reach for their phones and fire up the LegalFling app, previously populated with each party’s terms and conditions. The app will let you know exactly what you have agreed to for each encounter — or as Daniels says, each partner will “clearly see your do’s and don’ts without having to voice them.” Click “agree” and Daniels say you’ll have entered a legally binding contract, with an encrypted transaction stamp verifiable using blockchain technology.
If one of you breaches the agreement, say by not using a condom or sharing photos online, you could end up in court with a breach of contract lawsuit, Daniels says. And if he is right, LegalFling might provide the evidence you need, though some experts had doubts about its legal merits. The app is free, but the company plans to charge for its “live contracts” service.
In Sweden, this kind of app could help if a proposed new law that would require people to give explicit consent before they have sex gets passed. Otherwise any unapproved behavior could be considered rape.
But what about in the U.S.? Ari Moskowitz, an editor and novelist, says he thinks it’s “a cool idea, theoretically” although he foresees practical issues. (“Hold on, lemme charge my phone so you can sign a contract!”)
Women I spoke with had reservations, to say the least. Many echoed Sherry Boschert, who is writing a history of Title IX (the law that prohibits discrimination in schools receiving any type of federal funding). She worries “someone who is coercing a vulnerable person into sex will figure out a way to coerce a click on the app first.”
Danielle Citron, a professor of law at the University of Maryland and an expert on sexual privacy, also fears that consent could be coerced. But the real elephant in the room is that consent can change. “Consent apps do not capture any of the nuance in our interactions, and the changes in context can be dizzyingly fast,” she explained.
Daniels claims that’s not a problem. “Verbally saying ‘no’ or ‘stop’ clearly means there is no consent.” If your partner continues after you’ve said no, they are breaking the contract.
Here’s the real hang-up. If consent changes verbally but both partners don’t update the app, they are back to square one — a verbal agreement. But including an app in the mix could open the door to actually hurting a potential victim’s case if an assault occurs. Victims who already face an uphill battle proving assault would have a harder time if an assailant used an app to prove consent — even if consent was withdrawn verbally a moment later.
“It will be really difficult to document that consent was withdrawn if you used this app,” said Sandra Park, a senior attorney at the ACLU Women’s Rights Project.
Then, there’s the question of privacy. We-Consent’s policy is pretty good: They will not sell, rent or share information with a third party, but they do own it. LegalFling hasn’t finalized its policy, but its use of blockchain technology (best known for powering bitcoin) should prevent data from being “manipulated,” Daniels says. That means, data can’t be retroactively altered by someone gaining access to the database. In real-life terms, I can’t go back to my LegalFling contract after the fact and change a “yes” answer of mine to a “no.” Ditto, for a partner.
But could the blockchain data be hacked? Yes, and any stored information could be vulnerable.
“Consent apps do not capture any of the nuance in our interactions, and the changes in context can be dizzyingly fast.” Danielle Citron A professor of law at the University of Maryland