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Watch: Australian police commissioner suggests app to prove sexual consent
The suggestion of an app to virtually record sexual consent has sparked a divisive response after being mooted as a way to help tackle sexual assault.
The idea was suggested by the New South Wales (NSW) police commissioner, Mick Fuller, who said it could be a brilliant way to establish "positive consent", but critics have described it as a flawed and unrealistic suggestion.
Fuller originally shared the idea after figures showed sexual assault reports last year had risen 10% in NSW, Australia.
He explained that dating apps have brought couples together, but the same technology could also provide clarity on the question of consent.
The app could allow users to digitally record sexual consent before being intimate.
“Technology doesn’t fix everything, but... it plays such a big role in people meeting at the moment. I’m just suggesting: is it part of the solution?” Fuller said.
"You may have a son or a brother and you think this is too challenging but this app... protects everybody," Fuller told the Nine Network.
Fuller added that trying to prove whether or not there was explicit consent was a continual issue within sexual assault cases, and explained he believed an app could help more victims achieve justice.
While Fuller acknowledged an app would not offer a complete solution to the issue, he believes it could offer a more effective way to address the issue of positive consent.
In an op-ed in Sydney's Daily Telegraph, he wrote: "It needs to be positive consent. How do we do that in this day and age? One option is with technology."
But charities have claimed that in reality the app's use could pose many problems, pointing out that consent could be withdrawn even after it had been given virtually, and highlighting issues surrounding the potential faking of consent or victims being coerced into giving it.
Fuller said it was "okay" that people were criticising his idea for the app, claiming that opening up the conversation surrounding consent was important.
"The app may never see the light of day. People are out there today criticising the app, and that's okay," he said.
"But nobody has come to me with the suggestion that it's not a worthy cause in need of addressing."
Watch: Designed to protect men' - top cop slammed over consent app proposal
The idea of giving virtual consent via an app isn't actually a new one. Back in 2018 an app claimed to be able to help solve the issue of sexual consent by providing ‘legal proof.’
The app, called LegalFling, appeared to offer users the opportunity to give and withdraw consent at the touch of a button.
Since then the idea has been discussed in various other formats but has always received criticism for various flaws.
Katie Russell, national spokesperson for Rape Crisis England & Wales, believes some of the problems of a consent app stem from the issue that consent can be withdrawn at any time.
“The idea of a ‘consent app’ or similar has been mooted a number of times before," she explains. "While well-meaning, the problem with this kind of product is it fails to recognise that consent is very much a live and conditional concept.
"Pretty much as soon as a recording is captured of someone giving their consent, the recording ceases to have meaning or validity, because everyone has the right not only to give or refuse consent but also to change their mind and withdraw their consent at any moment."
Russell goes on to point out that the app cannot evidence whatever has happened in the moment after a ‘consent recording’ was made.
"Similarly, someone might give their positive consent in one set of circumstances, and then the circumstances change and the consent with it," she adds.
"For example, if someone falls asleep or passes out just after giving their consent, they no longer have capacity and sex with them would then be rape.
"More than this, considering the amount of sexual violence that takes place in coercive, controlling relationships, we’d have real concerns about the potential for ‘consent recordings’ to be used to threaten, bully and intimidate victims and survivors."
Russell says that ultimately, the only way to encourage healthy, consensual sexual relationships and encounters is through education, training, awareness-raising and the encouragement of respect and empathy.
Andrea Simon, director of End Violence Against Women Coalition (EVAW), can also forsee some issues with use of a consent app.
"The idea of a consent app may seem like a quick fix, but it is wholly inappropriate as it sends the message that a woman can't withdraw her consent once she has given it, which is entirely untrue," she says.
"This type of suggestion speaks to a fundamental misunderstanding of consent and what rape is."
Simon goes on to point out that when EVAW did some polling on attitudes to rape, a third of the men quizzed didn’t think it could usually be considered rape if the woman had flirted on a date then changed her mind, and the same amount also believed a woman can’t change her mind after sex has started.
"These types of apps could be used to support women's sense of obligation or blame if they change their mind, for whatever reason, about a sexual encounter and want it to stop later," she continues.
"We should be encouraging men and boys to seek enthusiastic consent at every stage of sex not just at the beginning."
There's also the legalities of a consent app to consider. Despite consent apps being designed with good intentions to combat sexual assault and clarify the ambiguities surrounding what constitutes consent, from a legal perspective they could be too simplistic.
"Apps like these rely on the question of consent being framed as a 'yes/no' issue, something that can be freely given or withheld by contracting parties. This is a fundamental misconception," explains Helena Spector, criminal barrister at Red Lion Chambers.
First, there is the question of 'giving consent' via the app, says Spector.
"Apps such as these would exist within the unequal power dynamics that lead to sexual offences," she continued.
"People might agree to have sex because they lack a proper choice. The perpetrator might have the power to have the victim fired, have them evicted, report them to the police, report their immigration status, call in a debt collection agency, call in social services.
"The coercion that can negate consent is multifarious and often implicit. If they can force unwanted sex, they can force the clicking of 'I consent'."
Further, Spector agrees with Simon and Russell, consent is continuous.
"It can be given and withdrawn," she explains. "It can be given to certain acts and not others. The limits of consent are necessarily conditional.
"A consensual act can become non-consensual in less than a second, quicker than the time it would take to 'update your status' on any app. By that point, it’s likely that any police-designed 'rape app' would not be in the forefront of a victim’s mind," she explained.
"And for all the reasons listed above, the victim might not feel able to formally withdraw their consent in the app, in the same way that many victims feel as though they can't say no."
Watch: NHS encourages victims of sexual assault to seek help
What's more, Spector points out that consent apps could do more to protect the potential accused rather than the victim.
"It is likely that these kinds of apps would simply serve as a protection mechanism for the potential accused rather than the accuser, a useful piece of evidence that no sex crime took place," she adds.
Spector goes on to say that the issue of consent is clearly not a problem with a tech solution.
"There are technologies that enable reporting of sexual assaults at universities, and technologies that connect victims of assaults to nearby services, such as trauma counselling," she explains.
"But they are not properly preventative. Prevention comes through education and a concerted social re-evaluation of what consent means, leaving behind the unhelpful 'yes/no' binary."
If you feel you have been sexually assaulted you can contact the Rape Crisis National Telephone Helpline on 0808 802 9999 (12-2.30pm and 7-9.30pm every day of the year) or visit https://rapecrisis.org.uk/get-help/
OR you can contact the 24-hour freephone National Domestic Abuse Helpline, run by Refuge, on 0808 2000 247