For those struggling to conceptualize how affirmative consent policies will play out in passionate sexual encounters, let alone in courts, imagine a situation where college students pull out their iPhones during foreplay to record video statements of consent.
It sounds like fodder for an Amy Schumer sketch. But a new app underscores just how far we’ll go to police the territory between what’s consensual and what’s not.
Michael Lissack has created an iPhone app which he hopes will change the conversation surrounding sex on campus while giving students tools to help facilitate affirmative consent.
The idea is, just before sex, Lissack’s app allows one or both parties to snap a video screenshot of explicit verbal consent given by each person.
Lissack, a former Wall Street banker and whistleblower, launched his “We-Consent” app three weeks ago along with a “What About No” app, which records someone watching a message that clearly states “no.”
The video recordings are not saved on user phones; instead, they’re encrypted and stored in an offline “cloud,” accessible only when an individual may want to disclose them to law enforcement or university officials.
The app is certainly timely: Last week, New York passed a law mandating colleges to adopt affirmative consent policies or lose state financial aid.
California passed the same law in September.
Colleges across the country are implementing affirmative consent policies on campus, and the prestigious American Law Institute has worked affirmative consent into a proposed update to the penal code for sexual assault. (As Judith Shulevitz recently noted in The New York Times, these model statutes are sometimes voted into law by Congress and states.)
“It’s nice that the law has changed in California and New York, but you can’t just change the system by announcing rules,” said Lissack, who is director of the Institute for the Study of Coherence and Emergence, an education research institute which, in Lissack’s words, “explores how lessons from the philosophy of science are applied in companies, social groups, and families.”
Lissack believes his “We-Consent” app provides students with a necessary “set of tools and props to help facilitate change.”
One considerable drawback: It’s only available to members of ISCE, though anyone can join for an annual fee of $5.
Lissack said he’s in talks with 300 schools about “school-wide purchases—some are thinking of buying it for all of their students, some will simply recommend it to them.” Membership fees would be adapted for bulk purchases.
The “What About No” app can be downloaded for free through Apple’s App Store, but Apple rejected “We-Consent” on the grounds that it was “icky,” according to Lissack.
Lissack was baffled and miffed by the rejection.
“We’re not Big Brother!” he exclaimed, adding that ISCE consulted with legal experts to ensure that the app doesn’t violate privacy laws. “We’re here to facilitate a conversation.”
Other legal experts are divided on whether Lissack’s app would be a good investment for schools and students.
“I do see some value in helping people relax about the risk of liability, and if tech-savvy college kids see this as cool, it could foster better communication and fewer misunderstandings,” said Stephen Schulhofer, an affirmative consent advocate, professor of law at NYU’s School of Law, and member of the American Law Institute (he co-wrote the Institute’s model penal code for sexual assault that references affirmative consent.)
He’s less concerned about the app “interrupting the flow” of sexual activity than he is about it being considered a model for consent.
“Clear communication has to be considered sufficient without having written or recorded proof of it,” he said.
His other concerns are more logistical. “A lot is riding on the effectiveness of the encryption,” he said, adding that “even if the encryption is iron-clad, the concept has fatal difficulties.”
While the recording might help avoid he said/she said situations, “its value would be very limited because in the event of subsequent misunderstanding, the person who recorded consent presumably would be claiming that she or he had revoked it, and the recording cannot clarify that issue.”
According to Lissack, that’s where his “What About No” app would come into play. But if one party were to resist in the heat of the moment, there’s a good chance they wouldn’t be clutching their phones.
They might also be physically compromised, unable to jump up, fish out their phone from a coat pocket, and open up the app to record the “no means no” scenario.
Vagaries aside, the app could conceivably be referenced in a judicial proceeding or in a court where a state or jurisdiction has adopted the affirmative consent law.
“It could be referenced if lack of consent is basis for prosecution,” said David Rudovsky, a criminal defense attorney and professor at the University of Pennsylvania Law School.
Rudovsky supports affirmative consent but draws the line at criminalizing lack of consent. “It shifts the burden of proof from the accuser to the accused, and I think that’s very unfair practice in our criminal system.”
The app underscores “the absurd nature of where affirmative consent is going,” Rudovsky added. “We reduced smoking in this country not by threatening to lock people in jail for lighting up but by educating them. The same should be true of affirmative consent.”