Proving Consent

• Author: Jason Tashea
• Pages: 34-34

34 || ABA JOURNAL DECEMBER 2018

Proving Consent

Tech companies are creating apps to combat sexual

assault, ranging from tools memorializing consent

to programs that help victims fi le reports with the

authorities By Jason Tashea

When having sex in

Sweden, “no” means

“no” and “yes” must be

explicit .

In May, the country’s

Parliament passed a law

stating that sex w ithout consent is rape,

making it the 10th Europe an Union

country to do so. Past law s required

Swedish prosecutor s to show that vio-

lence, or the threat of it, ha d occurred.

That isn’t the ca se anymore.

“This law change is hugely sig nifi -

cant,” says Esther Major, senior resear ch

adviser at Am nesty International’s

Europe o ce. “The burden i s no longer

on the victim to prove she fought ba ck

but on the perpetrator not to ra pe in the

fi r st place. It shifts the focus from t he

victim’s behavior to that of t he accused.”

As laws change, sof tware developers

believe they can levera ge technology to

bolster and prove consent.

Launched in March, uC onsent is

an app designed to enshr ine consent

between two people.

“The app is like a digit al handshake,”

says Cody Swann , CEO of Las Vegas-

based Gunner Technology, which pro-

duced the sof tware.

The app requires two people to t ype

in what they consent to. If both ent er

the same infor mation—confi rmed by

each person scan ning a unique QR

code on the other ’s phone—then a time-

stamp and location ta g is added, and

the agreement is uploaded to uCon sent’s

servers.

The evening then proceeds a s con-

sented, Swann says.

The #MeToo movement has broug ht

consent and sexual a ssault to the fore.

While technologi sts hope to impact how

consent and sexual a ssault reporting

occur, advocates , lawyers and research-

ers are often skeptic al of technology’s

role in this sensitive spa ce.

In the U.S., one in fi ve women and

one in 71 men will be r aped during

their lifetime, a ccording to the National

Sexual Violence Resource Center.

Eight out of 10 victims w ill know their

assail ant.

For Michael Lissack , executive direc-

tor of Empowering Victi ms, a nonprofi t

in Massachuset ts, consent apps aim to

get people beyond nonve rbal gestures

and fumbling state ments that may or

may not indicate clear bou ndaries.

To that end, his organization creat ed

We-Consent, a consent app, and it is

developing an assault repor ting tool.

“We invented an app that was not

designed to be used,” says Li ssack of

We-Consent. By merely know ing the

app was avail-

able, his hope

was that it

would instigate

a conversation

between two peo -

ple that might

otherwise not

have happened.

However, that’s

a best-case s ce-

nario, says Mary

Anne Frank s, a

professor at the

University of Miami School of L aw. “If

you can coerce someone into hav ing sex

with you, there is nothi ng to stop you

from being able to coerce somebo dy into

using an application that ma kes it seem

that you consented,” she says.

Compounding c oncerns, the apps

don’t refl ect t he fl uid nature of consent.

“It assumes that all se xual experi-

ences that star t out great end great,”

says Erica Olsen, di rector of the Safety

Net Project at the National Net work to

End Domestic Violence, “and that’s just

not the case.”

Acknowledg ing this problem, Swann

says he is talki ng with Amazon to cre-

ate a version for Alexa that wou ld let

someone retra ct consent through the

voice-activated a ssistant.

If sexual ass ault does occur, Callisto,

a nonprofi t web ser vice from San

Legal

Technology

Francisco , helps victims memori alize

the event, makes a repor ting choice

and detects ser ial o enders, CEO

Jess Ladd explain s.

The tool allows users to upload e vi-

dence and use it when they’re rea dy.

According to Ca llisto’s 2017 report,

campuses with t he web app see stu-

dents report an as sault in an average

of four months, while those w ith-

out the tool see reporti ng occur 11

months aft er the incident.

No one interviewed for th is arti-

cle knew whether data f rom a con-

sent or reporting app had been u sed

in a court procee ding. Research from

2012 indicates that for ever y 100

forcible rapes that occu r, less than 6

percent will be pros ecuted.

Susan Soren son, director of the

Ortner Center on Violence & Abuse

in Relationsh ips and

a professor at the

Unive rsity o f

Pennsylvania,

thinks that , unlike consent apps,

Callisto may have s taying power

because universit ies struggle with

campus assault.

“The systemic is sue is how univer-

sities have vary ing degrees of integ-

rity in invest igating sexual assault

on their campuses,” she says. “If al l of

them were doing a good job, students

wouldn’t see a need for this.”

Operating outside of the univer sity,

Callisto ge ts around these failures,

she says.

Franks at Mia mi believes technol-

ogy like Cal listo is a good thing.

“The more we ca n encourage vic-

tims of crime, genera lly, to record

what has happened as soon a s they

can, in as much deta il as they can, the

better it is for the proces s all together

and for everyone,” she says. Q

“If you can coerce some-

one into having sex with you,

there is nothing to stop you

from being able to coerce

somebody into using an appli-

cation that makes it seem

that you consented.”

—Mary Anne Franks

PHOTO BY JENNY ABREU

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