Can Apps Really Help People Figure Out Sexual Consent?
Lawyers, blockchain experts and sex writers weigh in on LegalFling
Last weekend’s Women’s March saw well over a million people take to the streets around the world to demand change around issues of gender and sexuality. On the minds and signs of many marchers: #MeToo. What began last year with revelations of sexual misconduct by powerful men in the workplace has now broadened to encompass more private interactions, along with long-held, unspoken assumptions about what constitutes sexual consent. The world is demanding a broader, more nuanced conversation about consent, how to recognize it, how to communicate, and how — above all — not to violate it.
The conversation — shrouded as it is in shame, fear and coercion — is trickier than most of us want it to be. That’s why a small but growing number of apps have popped up in recent years with the goal of simplifying it as best they can.
Many are skeptical, but a new player in the consent app world aims to update the field using up-to-the-minute technology. LegalFling is a spinoff of LiveContracts, which creates legally binding contracts and encrypts, secures and timestamps them in the super-secure, ultra-hip, crypto-enthusiast-hyped blockchain. It essentially sets up agreements between both (or all — depending on how many people are involved in the “fling”) parties before sex. “Your fling will receive an overview of your dos and don’ts, which he needs to accept before engaging in sexual activities,” says Rick Schmitz, one of LegalFling’s founders.
Once all parties have consented to these “dos and don’ts,” the blockchain theoretically holds them accountable for their behavior during their interaction. Should anyone break the agreed-upon rules, the contract they signed is frozen in cyberspace, as a monument to the consent they violated. Infractions can generate legal ramifications, depending on where you live, such as cease-and-desist letters. Or, more universally, says Schmitz, breaking the rules activates “a violation clause with a standard penalty of $10,000 for a single violation, plus $1,000 for every day the violation continues.”
The goal, as the app’s tagline says, is to “Get explicit about sexual consent.” But can an app really be a solution for a problem as eminently human as the communication of consent? And is a blockchain the best place to secure your personal list of yeses and nos?
We asked blockchain experts, activists, academics, and consumers what they thought.
Melanie Swan, Founder of the Institute for Blockchain Studies: In terms of technical functionality, it’s a common-sense demonstration case of blockchain technology’s core capabilities. Real-time blockchain contracts mean that two parties can come together and engage in a contractual relationship without needing a third party, such as an attorney. This could be useful in many different kinds of situations, particularly when trust and privacy are crucial. Blockchain technology can be used to clarify and enforce interests and choices between parties, and promote trustful behavior.
Erika Price, Social Psychologist, Psychology Instructor and Statistics/Methods Consultant: This app reflects one of the densest and most missing-the-point perspectives on this matter I’ve encountered, and that’s really saying something. It seems almost intentionally obtuse and derailing. The whole point of the cultural conversation we’re having right now about rape is that people need to get better at checking in, reading nonverbal signals and asking throughout the sexual encounter about consent.
In theory, a person could “consent” to any number of acts on this app and then, during the encounter, feel very, very differently about what’s happening. Maybe it turns out to be rougher than the person anticipated; maybe the act starts to hurt; maybe they’re a PTSD survivor and they get triggered; maybe they just decide the person has bad breath and they’re not attracted to them. Whatever the reason, a person can lose interest and withdraw consent at any time. You can’t lock somebody into assent to sex.
The people who love the idea of this app want to be able to opt out of the responsibility to engage with a partner and pay attention to their comfort for the entire encounter. You don’t get to opt out of that. You have to put the effort in. You have to actively care about not raping the other person. There’s no lazy way to get out of that.
Callie Little, Sex Educator and Writer: On the positive side, we have a tool that can help to clarify interactions and limitations to the maximum. That’s pretty cool. It’s also great that if someone’s date was hesitant to use it, that would be a clear red flag and could potentially save a lot of otherwise wasted time.
The negative, though, is that tools like this can also be easily abused. Just because someone taps an agreement doesn’t mean they weren’t coerced, that their phone wasn’t stolen, that they weren’t blacked out. While we can champion the idea of total independence and autonomy, the fact is that a lot of people could easily take advantage of this.
1. Consent is fluid. Any great sexual experience is a process of mutual exploration, communication and ongoing consent. [LegalFling] takes no account of that, and in fact, fails to understand it altogether.
2. This is, unsurprisingly, in the male-dominated tech world, and given an app from an all-male founding team, “consent” through a pathetically stunted male lens. (Fortunately, there are many men out there who don’t think like this.)
3. We have absolutely no need of ridiculous concepts like LegalFling when we make it easier to talk about sex in order to encourage open, healthy discussion around sex in the real world, so that we can promote and instill a societal gold standard of good sexual values and good sexual behavior.
Russell B. Richelsoph, Criminal Defense Attorney: Using the LegalFling app doesn’t create a contract for sex. The word “contract” has a very specific meaning in the legal world in which there’s a bargain for consideration, or in layman’s terms, an exchange. In most states in the U.S. you cannot create a “contract” for sex; it would be prostitution.
LegalFling does provide a mechanism for giving consent to sex. The makers of LegalFling propose to use a blockchain to document the authenticity of the consent. It’s important to remember that while consent can be given, it can also be revoked at any time. A person could give consent with the app, and then withdraw consent verbally. Once consent is withdrawn, whether verbally or through the app, any further sexual act against the person’s wishes would be a crime.
Nor am I sure about the $10,000 fine. Who would impose the fine? In most states, a nonconsensual sexual act is a felony punishable by prison. Fines are rarely imposed when a person is being sentenced to prison. If LegalFling is proposing they would fine a user who violated some End User Licensing Agreement, I think their ability to do that would be very limited.
LegalFling is an interesting idea. The presence of a blockchain-verified consent could provide a legal defense to a claim of unwanted sexual activity, but I don’t think it’s foolproof. A person could claim they withdrew consent verbally, or that they were coerced into giving consent.
Bridget Phetasy, Sex & Dating Columnist at Playboy: My gut instinct, as a woman who has been fielding questions about human sexuality, is that we’re trying to mechanize something that can’t be mechanized. It’s delusional (and borderline Orwellian) to think that we can regulate something as complex and emotional as the act of sex with legal forms and bureaucracy. Consent is subjective, not just in the moment, but in retrospect. It’s a fluid process that unfolds on a spectrum, bit by bit, as partners explore one another’s edges and boundaries. The most important and exciting part of this process is communication, and what worries me about these apps is that they’re trying to bypass the most important skill to have in the bedroom: Expressing your wants and desires.
Also, unless you’re consenting play-by-play, these apps seem more like a get-out-of-jail-free pass for men and less like an app that encourages healthy dialogue between lovers. Say a woman signs this consent form and then something happens that she isn’t comfortable with during the act? It’s still going to be her word against his, only this time he comes armed with a document she signed that claims she was okay with it.
Let me be clear: Consent is imperative — but it’s also complicated. In my opinion, too complicated to turn the responsibility of navigating over to an app.
Lynsey G. writes about sexuality, feminism and porn for outlets like Bust,McSweeney’s and Nerve. She last compiled a sex guide for a couple whose relationship had been derailed by depression.