NSW Police Commissioner Mick Fuller has proposed an app for sexual consent to address Australia’s pervasive culture of sexual violence, and to modernise attitudes on the importance of actively agreeing to sexual activity.
You’d be forgiven for thinking we’re in an episode of Black Mirror.
The idea has a range of problems, from fundamentally misunderstanding the concept of consent to opening up sexual assault cases to more technical arguments and victim-blaming.
Fuller is trying to address the need for affirmative consent — meaning there’s verbal, rather than implied, consent between sexual partners — following criticism that recommendations from a three-year review into sexual consent laws in NSW missed the mark.
Similar ideas have already played out elsewhere. Denmark has affirmative consent laws and also has a consent app. Consent for “one intercourse” logged in the app is valid for 24 hours. The app has been widely criticised.
Chair of Rape and Sexual Assault Research and Advocacy Dr Rachael Burgin told Crikey the app skewed the definition of affirmative consent. She says concerns around when violence or coercion is used to force someone to consent on the app, and around when consent is withdrawn.
“Ridiculous is the word I would use to explain it,” she said. “The ignorance it shows is unparalleled.”
The app might also strengthen protections for perpetrators, giving them a way to “prove” consent, even when it’s forced, Burgin says.
University of Wollongong criminologist Julia Quilter told Crikey that when using the consent app in sexual assault convictions, the question of who had been the “author” of pressing the consent button — and when — would become an issue.
“It strikes me that this is going to open up further grounds for more technical legal arguments in an area that’s already very complex,” she said.
Data is another huge issue. Women in sexual assault criminal trials often have their use of dating apps brought up by the defence.
“There’s a series of issues around storing that data and how it can be accessed by people and for what purposes,” Quilter said.
“I suspect it could strengthen the defendant’s case, and given the statistics on rates of conviction I don’t think they need to be strengthened.”
Rape and Sexual Assault Research and Advocacy wasn’t contacted before Fullers proposal, and it’s not clear whether any advocacy groups or NSW Attorney-General Mark Speakman had been consulted.
Speakman and NSW Police have been contacted for comment.