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Consent in the digital age: Can apps solve a very human problem?

  • Author: Maya Salam, The New York Times
  • Updated: March 3, 2018
  • Published March 3, 2018

"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, which was introduced to users in beta Monday, lets users give explicit sexual consent via an agreement, or a "live contract," a dynamic document that users can continuously interact with and update.

And yes, these agreements could hold up in court, said Andrew D. 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.

A screengrab from LegalFling’s website

Condom use, bondage, dirty talk, sexting: the app lets users set their boundaries before an encounter — boundaries that can be adjusted at any time with a tap and shared with a potential partner. (Sound familiar? Netflix's twisted-tech series "Black Mirror" incorporated a similar transaction in its episode "Hang the DJ.")

"A profile update is an event we store on the blockchain and will subsequently update the live contract," Rick Schmitz, a co-creator of LegalFling, recently said. The transaction is encrypted, timestamped and stored. (A blockchain is a collection of digital transactions that are registered in a sequence of "blocks" of data.)

Will these apps revolutionize sex? Not likely. As complex humans with ever-changing desires, we may not fit so neatly into click-and-consent existence portrayed in that "Black Mirror" episode, or envisioned by the app developers. But they are making steps toward addressing a problem that needs solving.

— When yes becomes no.

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 in the moment 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: triggering cease-and-desist letters, according to the website.

The creators of LegalFling, part of the blockchain company LegalThings, which digitized regulation for the Dutch government, 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. The requirement to interact 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, or to overcommit in an effort to appear more sexually adventurous.

— Legitimate, but there are caveats.

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, adding that they would most likely be legally viable in cases globally, as well.

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.

But technology is reflecting a cultural shift in respecting and understanding the idea of consent, he said.

Drouin agreed: People are now communicating about these incidents in ways that are recordable and admissible in court, she said. “It’s no longer ‘he said, she said.’”

— An app with a different lens.

While LegalFling is the newest app hoping to address the rising tide of consent awareness, it’s not the first. We-Consent, introduced in 2015 by the nonprofit Institute for the Study of Coherence and Emergence, was created for students on college campuses to help them adhere to the implementation of affirmative consent rules.

In 2014, California became the first state to require colleges to use affirmative consent as the standard in disciplinary decisions, which inspired the creation of We-Consent, said Michael Lissack, director of the institute.

We-Consent records a short video of two people stating their affirmative consent, according to the company, and uses facial recognition technology. That recording is encrypted and inaccessible without a legal petition.

There are over 100,000 encrypted files, Lissack said, but the institute has had only two requests ever to retrieve the videos. In both instances — before We-Consent turned in the videos — the fact that they were available spurred the cases to settle, Lissack said.

“From Day 1, the purpose of the app was to get people who are about do something to discuss what they’re going to do with one another,” he said.

Consent can only happen from discussion, he said, “not from sending emoji back and forth, nodding your head or signing some weird legal agreement.”