Why consent apps don't work, according to criminal lawyers

Consent can be withdrawn at any time

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In light of the allegations surrounding Harvey Weinstein, the subsequent #MeToo movement and the recent conviction of Bill Cosby, the murky topic of consent - and how it is established - has never been more at the vanguard of social discourse.

Today, there is an app for just about anything, from de-motivational memes to cuddles-on-demand, but the concept of consent apps - whereby you can state the level of physical intimacy you are comfortable with prior to getting intimate with a partner via a “digital contract” - is deeply problematic for myriad reasons.

What happens if you want to withdraw consent after granting it? What’s to stop your partner from swiping for you without your knowledge? Moreover, does anyone actually use them?

There are a number of consent apps operating today: Legal Fling, We-Consent and uConsent are just a handful of the platforms that have been designed to digitise the act of giving consent so as to avoid any sexual misunderstandings down the line.

However, despite good intentions to combat sexual assault and assuage the ambiguities surrounding what constitutes consent, from a legal perspective these apps are almost entirely redundant, explains Rachel Adamson, criminal lawyer at Slater and Gordon.

If used as evidence in a rape case, saying “yes” on an app would surmount to no more than circumstantial evidence, she told The Independent.

This is mostly because a lot of these apps do not take into consideration a person’s right to withdraw consent at any time.

“If someone gives consent on an app, there’s nothing to stop them changing their mind five minutes down the line, so even if you’d already embarked upon whatever intimacy you’d consented to, you’d be entitled to withdraw consent at any stage," Adamson continued.

"As soon as it is retracted, the act has to stop, otherwise, to carry on would be a criminal offence.”

On uConsent and LegalFling, you can actually withdraw consent you’ve already granted, with the former planning to implement a “panic button” feature for this very purpose, however, considering the precarious parameters that typically surround sexual harassment and assault, how practical is this likely to be at the time?

Obviously further caveats arise to consent app-usage when alcohol is involved and there is no clear way of telling just how much one person’s judgement is compromised at the time of granting consent.

Plus, as Karen and Güneş Ilgüy from City Law Firm point out, when using these apps you must determine exactly what you’re agreeing to, which can cause further issues if and when a “change of plan” occurs.

“If two people decide to carry out a particular sexual act and agree to it using a consent app then they would not be able to engage in any other act without agreeing to it first from a legal perspective,” they told The Independent.

“So when there is a change, either they will need to verbally agree (which defeats the purpose of using the consent app) or they have to stop what they are doing and use the app to record their intentions, specify the sex activity and record consent.”

Again, the practicality of such an “interruption” becomes a core issue, one that few couples are likely to acknowledge or abide by.

However, there is one way in which the apps might be useful in a rape case, explains Adamson.

“Clicking the button ‘consent’ on its own might not be worth very much in court, but the surrounding circumstances could be i.e. who downloaded it, whether there have been previous conversations between the couple in question and the content of those conversations.”

All of these might provide further insights into the events leading up to an alleged rape or assault, she said, which can be useful in building a case.

That being said, Adamson admits she has yet to encounter an assault case in which a consent app has actually been used.

However, she explains that the concept of digitising consent in a way that would be legally-recognisable is “almost impossible”.

“I don’t think there’s any kind of digital app or written format that could cover a situation where consent is withdrawn,” she said.

“Everybody is entitled to say ‘no’ at any stage”.