No more 'he said, she said': app makes it simple to consent to sex

The ConsentAmour app allows a couple to consent to physical activity to safeguard against potential sexual assault claims - but there are still legal hurdles, warns a lawyer

12 March 2019 - 12:36 By Zola Zingithwa
Before you get physical you may want to establish a 'consent' agreement to set out the ground rules via an app.
Before you get physical you may want to establish a 'consent' agreement to set out the ground rules via an app.
Image: 123RF/Vadimgozhda

His fingers move up and down your arm and, although you want to look down as you the fine hairs on your arm tickle, you can’t quite pull yourself away from his gaze.

He asks you if you want to go back to his place. He waves to the waiter to bring the bill as you whisper, "Yes."

He reaches into his pocket and takes out his phone. A few taps and he places it front of you.

"First, let's get each other's consent."

Yes, there is now an app, called ConsentAmour, which promises to provide "a quick, easy - and even fun - way for people to document that a physical relationship is consensual by creating proof of mutual consent".

Considering we use dating apps to find lifelong partners (or short-term ones), it was only a matter of time before we outsourced giving consent for physical relationships to the digital world.

ConsentAmour promises to cut the ambiguity when it comes to consent by allowing any two parties to state whether they want to engage in physical activity. The app promises to create a foolproof agreement.

You have to create an account which gives you an account ID. Your email and phone number will be verified. This, along with time, date and location stamps, images and videos are used as evidence of mutual consent.

Both parties have to have the app on their phones, so the transaction record that proves consent was given can be shared between the two. The app promises all records will be kept confidential and will be deleted after 30 days.

The app will clarify any confusion about whether there was mutual consent or not. In their own words, “No more ‘he said, she said’"

According to the site, the app was "conceived because of multiple news stories concerning sexual assault cases on university campuses, in workplaces and pretty much in every other scenario you can think of".

It says that while sexual assault is a major problem that must be acknowledged and addressed, some also argue that there is no fair or judicial process in place on college campuses for dealing with false sexual assault accusations.

According to the creators, the app will clarify any confusion about whether there was mutual consent. In their own words, "No more 'he said, she said'."

WILL IT HOLD UP IN COURT?

But apparently not so fast, innovators.

According to managing director and senior legal consultant at Mpisi Cora, Thubelihle Mpisi, there is no fixed definition of consent that can be easily sorted out by an app.

He explains that consent "can be defined as a voluntary submission but it will always be based on facts", meaning the circumstances surrounding consent need to be determined for each unique situation.

That said, Mpisi says an agreement can be made in many different ways but what is important is not whether an agreement is valid but if it can be legally enforced.

So can your lawyer use ConsentAmour in a court of law? Sure.

"It can swing the pendulum in support of the case of the person who is alleged to be conducting themselves in a sexually delinquent manner," says Mpisi. "But it does not necessarily follow that the court will say there was consent because there was an agreement."

The judge would also consider "the reasonableness of the agreement".

Mpisi takes the example of romantic partners agreeing to kissing and creating such an agreement on the app. Although that agreement is valid, it is not reasonable to expect a judge to force a partner to honour their agreement to kiss just because there is a contract.

Nonetheless, the app might show that a partner demonstrated a willingness to get consent by going through the effort of downloading the app and getting their partner to agree to do the same.

However, it is also important to remember that consent can be limited and revoked at any point, and although ConsentAmour declares the app allows for such, Mpisi wonders what would happen if, while they were getting hot and heavy, one partner suddenly decided to stop all forms of physical interaction.

Do you say, "Stop!" and take out your phone to prove that you did? What if you run out of data or battery life? Are you now obliged to do what you last agreed to on the app? Of course not.

Not only is the practical application of the app dubious, its underlying message seems to suggest most sexual assaulters are oblivious to their actions and if only they had used this app they would not have found themselves in trouble.

However, Mpisi makes a good point when he suggests the app might work in creating a new culture around speaking honestly and clearly about consent at every stage of getting it on with a partner.

 "Technology tries to meet the demands of the current times,” he says, so perhaps in the age of Tinder and Grindr, ConsentAmour can help bring back the good times and erase some of the perils of getting it on.

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