Why A Sexual Consent App Fundamentally Misunderstands The Notion Of Consent

“My concern about this proposal is that is makes consent appear as something given at just one point prior to commencing sexual activity, and overlooks the fact that it can be withdrawn at any time.”

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NSW Police Commissioner Mick Fuller has suggested we develop a phone app where sexual partners can record their consent before having sex.

No, you didn’t misread that.

Fuller, one of the highest-ranking law enforcement officers in the country, wrote in a Daily Telegraph op-ed that, much like how we now have to sign into every cafe and restaurant we attend, we could harness our phones to confirm and document sexual consent. 

In a press conference today, he also said that app could be “the worst idea I have all year”.

And, on that last point, he is completely right. 

To say that this app is an undercooked brain fart is generous. How would it work? Would everyone have their own QR code that their partner would have to scan before hopping aboard? Would you have to solve a math problem to prove you can consent? I have so many questions.

In all fairness, Fuller probably had good intentions.

In the article he says he’s frustrated that, despite receiving more than 15,000 reports of sexual assault last year, less than 2 percent of reports lead to guilty verdicts in court. He wants to ensure that positive, not just implied, consent is given before a sexual encounters. 

It’s important to understand Fuller’s writing all of this in the context of NSW’s complicated consent laws, which experts argue make it difficult for survivors to successfully prosecute rape and sexual assault cases. 

In NSW, to prove that a rape occurred, you have to prove that there was sexual intercourse without consent, and that the defendant knew there was no consent.

If the survivor ‘froze’ in the moment, if they didn’t say ’no’ or do anything to physically prevent the intercourse from going ahead, that could all form reasonable grounds for the defendant to argue they thought consent was given.

So you can kind of see why the Police Commissioner thought an app that encourages affirmative consent would be a good thing.

But Fuller’s app wouldn’t help solve these problems — it would only make them worse. Here’s why: 

1. It Fundamentally Misunderstands Consent 

Fuller appears to fundamentally misunderstand how consent works.

Sexual assault survivor, advocate and Director of Rape and Sexual Assault Research and Advocacy, Saxon Mullins, told Junkee that Fuller’s idea “is almost laughable if his idea of consent wasn’t so damaging.”

“Even if you throw away the absolutely ridiculous notion of an app, even just one yes at the start of a sexual encounter, does not consent make.”

Dr Jonathan Crowe, Professor of Law at Bond University, said that we need to move towards the idea that consent is “an ongoing conversation between the parties to sexual activity where both people involved have a responsibility to check-in with each other throughout the whole encounter and are willing to proceed with each sexual act.

“My concern about this proposal is that it makes consent appear as something given at just one point prior to commencing sexual activity, and overlooks the fact that it can be withdrawn at any time,” said Crowe, who also works as Director of Research at Rape and Sexual Assault Research and Advocacy.

2. It Would Be Used To Help Rapists, Not Survivors

What is perhaps most alarming about Fuller’s proposal is that, according to experts, it would probably end up being a tool used to exonerate rapists rather than help survivors establish a lack of consent.

A defendant could point to the fact that both parties signed off on the app before having sex to prove consent was given.

But could a survivor point to the fact the app wasn’t used at all as proof that consent wasn’t given? Unlikely, according to Crowe.

“Think about how this would work in the court room process,” Crowe said. “There is always going to be circumstances where the app is not used. And there is no proposal to make it mandatory, nor should it be.”

Another problem is that the app wouldn’t capture situations where consent was only due to threats or coercion. If anything, it could be used by rapists to cover their tracks.

“There is a lot of potential for perpetrators, for people to coerce or pressure their victim to consent on the app and use that as a defence in court,” Crowe added.

“One of the barriers to prosecuting rape and sexual assault cases is establishing that the circumstances around the sex were coercive. If the defendant can say that she ticked a box in the app, that could create another type of excuse, a ‘get out of gaol’ card for defendants.”

Director of End Rape on Campus, Sharna Bremner, said the app also wouldn’t account for cases where a person is intoxicated and unable to give proper and informed consent.

“Given that we work with young people, alcohol can often play a role. And anyone who has been drunk on a night out knows how easy it is to lose our phone, or push the wrong button,” Bremner told Junkee.

“If somebody is drunk, legally they can’t consent. And having an app could ignore the nuances of sexual relations in any form. It’s such a bizarre suggestion.”

3. It Distracts From Better Solutions

Perhaps the most frustrating part of this whole saga is the fact that a white middle-aged man is offering up a wild and really unhelpful suggestion when women have spent decades advocating for expert-informed ways to tackle sexual assault and rape culture.

Just this week, tens of thousands across the country marched against sexual violence and called for independent investigations into cases of gendered violence in Parliament House. Chanel Contos’ petition calling for better sexual consent education in schools received thousands of signatures and caught national attention this month.

But no — instead we hear pitches for apps and wearable alarm devices. And our tendency for a “shiny tech solution” just shows we are missing the point, according to Bremner. 

“It’s not that young people don’t understand what consent is, it’s that they just don’t care. And no app in the world is going to stop somebody who doesn’t listen to a ‘no’,” she said.

“We need to start at the beginning and spend money in the right places. We have people who are getting tens-of-thousands in start-up grants for these kinds of proposals, when you have consent education and best-practice prevention that is woefully underfunded, and front line services that are getting no money whatsoever.

“We have the right answers, we just aren’t funding them properly.”

Will this app go ahead? Almost certainly not.

But what’s concerning, as Mullins puts it, is that “one of our highest police officers is proposing this idea around consent and fundamentally misunderstanding what consent is, and how two people engage in sexual activity.”

“Even to write this, to put it out there, even if the app doesn’t happen, is really concerning,” she said.

“Some people might read that stuff and think ‘that might be a good idea’, and that cannot enter people’s heads. If we boil down the conversation around consent to something so binary as this moment of yes and no, we lose.”

Justine Landis-Hanley is Melbourne-based journalist. Her work has been published in the New York Times, the Guardian, the Saturday Paper, and the Sydney Morning Herald.