The Case Against Consent Apps from a Legal Scholar
There’s an app for almost everything. Maybe there shouldn’t be.
Consent is the “moral magic” that changes the meaning of sexual relations.
But because consent signals leave little evidence, instances of non-consent often devolve into cases of he said/she said. Fortunately, wouldn’t you guess it, there’s an app for that. Several, in fact.
Inspired by recent policies of affirmative consent in colleges and legislation, developers have released smartphones apps designed to stimulate conversations about consent and record assertions of both consent and non-consent.
But they’ve also attracted their fair share of critics. Among them is legal philosopher John Danaher of the University of Galway, Ireland. In a paper published last year, he argues that the apps do more potential harm than good.
Consent apps record consent in different ways.
Good2Go (now defunct) involved tapping a screen to signal consent or lack thereof and admitting one’s state of intoxication. On the other hand, We-Consent, part of a suite of apps, records a video of both parties conceding consent, while SaSie makes user sign a contract. The most recent arrival on the scene, LegalFling, comes with a host of options for what a partner does and doesn’t want done to them.
If you’re struggling to imagine using such an app, you’re not alone. Critics have called them “unrealistic” and “ridiculous”. While encouraging conversations about consent is a noble goal, and conversations about permissions and limits can indeed be sexy, it’s difficult to transform “can you just sign this legal contract to make sure we aren’t assaulting each other” into bedroom talk.
Danaher argues that consent apps are also impractical, creating more problems than solutions. He offers three principal criticisms.
First, digital consent records decontextualize consent, by failing to take into account whether a partner has the capacity to consent or the possibilities of coercion and deception.
What if one party is intoxicated? When it was still around, Good2Go asked users to rate their own intoxication level, but as Danaher points out, drunk people are seldom that drunk according to themselves. And what’s to stop an aggressor from using coercion or deception to obtain a record of consent?
Second, there’s the danger that someone might not record a withdrawal of consent. This could be due to coercion or social pressure, or the victim “freezing” due to trauma. In such a case, the record of initial consent could tip the balance even further than normal in favor of the accused.
It also shifts emphasis away from reading someone’s body language for signs of comfort/discomfort and pleasure/displeasure. Instead, digital consent logged in an app is privileged above all else.
Third is what Danaher refers to as “an air of menace,” which is vague wording for the idea that once a person has recorded consent, he or she may be reluctant to withdraw it, and feel pressure to go along with things he or she doesn’t really want to do.
Danaher concludes: “Because of the tradeoffs involved, it is unlikely app based technologies could ever be created that would significantly address the problems of rape and sexual assault”.
What are consent apps good for?
Danaher notes that consent apps probably hold more value for people accused of sexual assault than for victims. It’s worth going into this further.
If person A verbally propositions person B, but person B refuses, it’s unlikely either party will insist on introducing a consent application to record the interaction. If person B agrees, but then withdraws consent, both can be recorded, but it’s more complicated than it seems.
SaSie and LegalFling allow termination of consent with a click, but person B might have to borrow person A’s phone, or download the app, to do so. Recording withdrawal using We-Consent is only possible with another app in the suite, called What-About-No, but this is designed specifically to deter persistent aggressors (it records an aggressor’s face while playing a video of a police officer telling him or her off).
And if enough time passes between consent and withdrawal of consent, there’s room for an aggressor to argue that sex occurred in the interim. So if anything, the information recorded seems to add more to an aggressor’s claim of innocence, since it provides proof of consent at some point, than to a victim’s claim that consent was violated.
Given this, perhaps we could argue that consent apps are good, at least, at protecting people who are falsely accused of assault. But it’s a process also open to abuse, and one has to wonder: what incentive do people have to record something that might later limit their legal options in the case of assault?
Our digital lives
It seems doubtful that consent apps will take off, at least for now. They’re just too socially awkward. But even if they did, would it be a good thing?
So much of our lives now take place in the digital realm. Instead of talking, we text. Rather than touching, we “poke” (alright, that one is a little 2010). Instead of meeting, we swipe right. Will moving sexual consent to a digital platform actually encourage conversation, or reduce it? Will it add nuance, or take it away? Some discussions need to be face to face, with phones down on the table, not in your hand.
There really is an app for everything these days. But sometimes, perhaps, there shouldn’t be.