Can you give sexual consent using an app?
‘Contract’ may not hold up if challenged in court
It’s not the way it goes in the movies. You’re about to elevate a fling to the next level when you pause to whip out protection – no, not that kind – a smartphone to memorialize evidence your sexual partner has given consent.
Spurred on by the #MeToo movement and numerous reports of sexual misconduct on college campuses, developers have introduced apps that purport to supply evidence that “yes” means “yes,” before or just about when things start to get steamy.
Such apps carry suggestive names – Consent Amour, Legal Fling, The Consent App and YesMeans Yes, among them – and at least a murky promise that you’ll be protected legally if a dis--
pute arises after the fact. Putting aside the awkward discussion that would have to take place, whether any “contract” agreed upon before engaging in sexual intercourse holds up to court challenges is at best an open question and quite possibly dubious.
A chief reason: Even if consent was granted through the app, your partner could have verbally rescinded it only minutes later.
“The problem with relying on an app to record whether consent has occurred lies in the fact that consent changes,” says Sandra Park, senior attorney at the ACLU’s Women’s Rights Project.
On The Consent App from Silicon Bayou, you enter your name and declare that you are of legal age and understand the laws regarding sexual consent of the state you are in. You further declare that the agreement is being made of your free will and acknowledge that “at this time, I do not intend to change my mind before the sex act(s) are over. However, if I do, it’s further understood that when I say “STOP” my partner agrees to STOP INSTANTLY.”
After you digitally sign the agreement, you are asked to hand the phone to your partner so they can read it over and sign the consent form. The final step is to take a selfie together to show that both of you are “coherent and willing participants.”
Once agreed upon, the agreement is stored in The Consent App’s “vault.”
Of course, a potential weakness in any of these apps is ensuring that both sexual partners were sober enough to actually consent and not coerced at the time they gave that consent, and even if they were willing participants, that they did not verbally or otherwise indicate they changed their mind.
Still, when it comes to consent, technology appears to be influencing the conversation. Wherever you come down on the allegations of sexual assault facing Supreme Court nominee Brett Kavanaugh, if such an alleged incident were to occur at a party today, there would be a strong chance that someone could have supplied some visual evidence that the party was taking place, if only to prove there was such a bash, who was there and whether or not the attendees had too much to drink.
“When you have a ‘he said, she said’ case, what often times people aren’t thinking about is the other thing in the room, the cellphones that are in both of those individuals’ pockets,” says Andrew Cherkasky a former special victims prosecutor who is now a criminal defense attorney focusing primarily on sexual assault charges. “What’s happening on the cellphones just ahead of it? Is the alleged victim giggling with a friend on Snapchat about the guy that she’s about to ‘hook up with?’ Is the guy using language with a buddy of his that’s aggressive in nature?”
Michelle Drouin, a professor of psychology at Purdue University Fort Wayne, concurs: “Technology, in general, is really reframing evidence of consent or evidence of sexual activity and some cases sexual assault.”
The sexual consent apps all seem to work a bit differently. On its website, LegalFling writes that “sex should be fun and safe, but nowadays a lot of things can go wrong. Think of unwanted videos, withholding information about STDs and offensive porn reenactment. While you’re protected by law, litigating any offenses through court is nearly impossible in reality. LegalFling creates a legally binding agreement, which means any offense is a breach of contract.”
The company explains how the app works: You send an encrypted “fling” or a request to a contact or would-be sex partner through a messaging app or text and await the other person’s response. You indicate your boundaries and sexual preferences through the LegalFling app, for example, indicating whether French kissing is OK or whether you’re willing to give and/or receive oral or anal sex.
If the other person agrees, the app generates a “Live Contract,” which the company claims is legally binding, though whether this dynamic document holds up in court depends on the country where you live. LegalFling says you can change your mind, of course, but revoking consent is always done verbally and not through the app.
Your private agreement is verified using blockchain, the digital ledger technology that is the underpinning for cryptocurrencies such as bitcoin. (LegalFling is owned by a Dutch blockchain company.)
Drouin does see some positives in consent apps such as LegalFling that can serve as “conversation starters,” especially for new partners.
“But again, it has to come with that caveat that we can change our minds at any time,” she says. “This being used as any kind of contract is ridiculous and I don’t think would be upheld by the law.”
Of course, in a “he said, she said” scenario, having such an agreement could perhaps in a criminal case provide some “reasonable doubt.” But it’s not clear whether these agreements would be admissible evidence.
For his part, Michael Lissack decided to retire an app called We-Consent and is instead focusing on an app called Project Guardrail, which grew out of a site he runs in Boston called Empowering Victims. The idea is that someone who has been violated can record an encrypted, time-stamped video that can later be accessed by law enforcement. Once a person tells their story, they cannot edit their account.