Introduction
After the advent of #MeToo movement and numerous reports of sexual misconduct specially on college campuses, sexual consent applications like Consent Amour, Legal Fling, Yes Means Yes, SaSie or Good2Go were introduced by the developers with the idea of reducing and addressing various sexual violence cases in a range of ways. Although marketing efforts claim to address concerns about sexual privacy, it over-promises and under-delivers, similar to the advent of “consent apps”. Mobile phone applications are one recent development supposedly designed to improve consent negotiation and provide a clear consent record whereby you can mention the amount of physical intimacy you agree to before getting intimate with the other person involved via a “digital contract”. These applications claim to look into various things like recording explicit, helping one to discuss boundaries and communicating non-consent.
In New York and California, a Bill was signed into law in July 2015 that requires both parties to obtain consent for1 sex constantly. These two are the only States that have introduced laws of affirmative consent, requiring only college campuses to adopt them. “The American Law Institute which helps to write the nation’S criminal codes, is in the process of rewriting the sexual assault Penal Code to incorporate affirmative consent.”2 These applications follow the “yes” means “yes” concept also known as affirmative consent. This indicates that if a person has consented to something and changes her mind in the process, since she has already said “yes” earlier, her non-consent does not hold value until she verbally says otherwise. Absence of a “no” cannot be inferred as consent. This itself simply negates the whole concept of affirmative consent. In addition to this, since these applications were described as literal legal contracts that bind two users to the agreement.3
With the fear of rape accusation all around, consent applications appear to solve this problem. Not rape, but rape accusations. Consent applications are here to either help men defend themselves in court or reassure fearful men into having intercourse with women “safely”4. Further it is explained how some sexual consent applications go about veiling as legal contract agreements and the problems revolving around such claims. While critically analysing in detail the limitations of the consent applications with the help of the view of the legal fraternity, other legal and social problems are also discussed. This paper questions extensively the legal validity of such applications.
Applications like LegalFling “promises to let users set out which practices they are and are not comfortable with”.5 They can “set forth sexual standards along with the rules on the use of condoms, disclosure of sexually transmitted diseases, and the taking of photos and videos”.6 LegalFling permits users to allocate a penalty for sharing nude recordings and violating the agreement. These applications are said to “function as a legal, binding document of consent and intent, with the content being uploaded and then only accessible from police or disciplinary Boards if needed”.7 It appears to supply evidence that “yes” means “yes”.8
Are sexual consent applications answering the wrong question
“Consent is an ongoing conversation, it is not just a one-end on agreement”, said Erin Voila, President of Tufts Universities Action for Sexual Assault Prevention of Advocacy Group in an interview.9 In today’S world, there exists a misconception among men that the absence of a “no” always means “yes” and this is a major grey area that we are operating on specially in a generation that is still unsure about what consent is.
The act has to stop immediately on the consent being retracted, or it would be considered as a criminal offence to continue with it. Additionally, it has been seen that people frequently freeze in dangerous situations. Unless the consent is given every 30 seconds of the sexual activity through this app, it is impossible to figure if the consent was there the whole time, says Sean Black, who is the Communications Coordinator of Coalition Against Sexual Assault at the Springfield-based Illinois.10
Past consent to a given act does not imply ongoing or future consent.11 Therefore, recording sexual consent on an app could prompt someone to give an idea that they can cross the line. If you consent to some sort of sexual activity, you have to be concerned that the person may go beyond what is actually consented. Likewise, applications can be easily spoofed too.
“Further caveats arise to consent app-usage when alcohol is involved and there is no clear way of telling just how much one person’S judgment is compromised at the time of granting consent.”12 “In 2014, at the University of Wisconsin, for example, several girls ended up in the hospital after they were served punch spiked with Rohypnol at a fraternity party (Mejia). This fraternity engaged in a ‘rape conspiracy’ by planning sexual assault and intentionally drugging unsuspecting women.”13
Do such consent applications have the force of law
Some of these applications profess to be binding legal agreements by contract law. They claim to provide and help an individual to record a violation and pursue it through the courts as a civil case based on contract law. Whereas others like uConsent say that “This is not a legally binding contract. This is like a digital handshake agreement. You talk about what you are agreeing to, and then you shake on it,” said Cody Swann.14 She is the CEO of uConsent app’S company. Applications like these prove to be a useless practice because without any legal backing, there is no impediment for blocking those who can negate its legitimacy by merely playing along and then exceeding its mandate.15
Since any kind of legal contract is immediately voided after a party breaches the contract, but for all sexual encounters, consent can be withdrawn at any point and inability to constantly reaffirm consent during intercourse legally renders such contract agreements futile.16
Therefore, it is not feasible for either participant to enforce it and there is no protection available for either the victim or the alleged perpetrator. 17
According to Lori Anne Thomas, a Toronto defence attorney, “A consent contract could, perhaps, be used in court to speak to a person’S state of mind or to raise reasonable doubt on an accuser’S claims.”18 Although documenting intent for consent might not be worth very much in court, the surrounding instances like who downloaded it, what were the content of the conversations between the participants if any along with various other details.19 All such available information might be useful in building a case by providing insights into the circumstances that led up to an alleged rape and sexual assault.
However, the concept of digitising a legally recognisable consent is “almost impossible”20 and if it were even given legitimacy, the courts would be overburdened with large amounts of claims.21
There is an increased risk that may be caused by using such apps. A person can be free to go to any extent of sexual assault as he has the safety of not getting caught by obtaining his partner’S consent through unfair means. Even though we must consider all potential and technical tools to foster sexual safety, we ought to question whether those options protect individuals or undermine both victims and their cases creating new problems. That being said, it is yet to encounter a sexual assault case which involves consent apps.
Conclusion
Consent Amour advertises itself as, “false accusations are made against innocent guys everyday that’S where Consent Amour comes in with just a few clicks away, the Consent Amour app is there when you need it when your girl accepts your request, you have proof of mutual consent”.22 These applications are designed mainly for the US market.
The thoughts behind these applications seem fixed at protecting people who do not respect a change of mind during engaging in such activity. If a person can force someone into having sex with an individual, nothing can stop him from coercing somebody into using an application that makes it seem that you consented.23 Dodge examined the ways such evidence may either increase the likelihood of positive legal outcomes for women or be used by the defence as a means of arguing that a victim did not act “appropriately”, and thus work against her case.24
*3rd year student, BA LLB (Hons.), National Law University, Odisha. Author can be reached at <shubhragrwl11@gmail.com>.
*The article has been published with kind permission of Eastern Book Company cited as (2022) PL October 67.
1 Syracuse.com, Marnie Eisenstadt, “ Can I Put My Hand There? New York Law Changes the Rules of the College Hook-Up”.
2 Supra note 1.
3 This Is York, Honey Tey, “ Consent Apps: Yes or No?”.
4 Medium, Morgane Q., “ Sexual Consent Apps Answer the Wrong Problem”.
5 Reuters, Emma Batha, “ After #MeToo, Phone App Allows You to Legally Consent to Sex”.
6 Ibid.
7 Hilkje Charlotte Hänel, What is Rape? Social Theory and Conceptual Analysis.
8 Ibid.
9 RAINN, “ What Consent Looks Like”.
10 Chicago Tribune, Meg Graham, “ New Applications Urge Mutual Consent, ‘Yes Means Yes,’ When it Comes to Sex”.
11 Definitions of sexual misconduct, sexual consent, and sexual harassment, (Yale University Publications, 2019).
12 Independent, Olivia Petter, “ Why Consent Apps Don’t Work, According to Criminal Lawyers”.
13 Ibid.
14 Supra note 7.
15 RTÉ, Stephen Strauss-Walsh, “ The Legal and Ethical Conundrums of Consent Contracts and Apps”.
16 Ibid.
17 BBC News, Holly Honderich, “ Harvey Weinstein Trial: Could Written Sexual Consent Stand Up in Court?”
18 Ibid.
19 Supra note 15.
20 Supra note 13.
21 RTÉ, “ The Legal and Ethical Conundrums of Consent Contracts and Apps”.
22 The New York Times, Maya Salam, “ Consent in the Digital Age: Can Apps Solve a Very Human Problem?”.
23 Jason Tashea, “ Legal Technology: Tech Companies are Creating Apps to Combat Sexual Assault”, 104 ABA J 34, (2018).
24 Deborah White, Lesley McMillan, “ Innovating the Problem Away? A Critical Study of Anti-Rape Technologies”, (NCBI, Violence Against Women, 21-7-2019).
