Abstract
Rape and sexual assault are major problems. In the majority of sexual assault cases consent is the central issue. Consent is, to borrow a phrase, the ‘moral magic’ that converts an impermissible act into a permissible one. In recent years, a handful of companies have tried to launch consent apps which aim to educate young people about the nature of sexual consent and allow them to record signals of consent for future verification. Although ostensibly aimed at addressing the problems of rape and sexual assault on university campuses, these apps have attracted a number of critics. In this paper, I subject the phenomenon of consent apps to philosophical scrutiny. I argue that the consent apps that have been launched to date are unhelpful because they fail to address the landscape of ethical and epistemic problems that arise in the typical rape or sexual assault case: they produce distorted and decontextualised records of consent which may in turn exacerbate the other problems associated with rape and sexual assault. Furthermore, because of the tradeoffs involved, it is unlikely that app-based technologies could ever be created that would significantly address the problems of rape and sexual assault.
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Notes
Krebs, C. et al. The Campus Sexual Assault Survey (National Institute of Justice, Washington 2007), available at www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf.
Cantor, D. et al. Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (The Association of American Universities, 2015), available at www.aau.edu/uploadedFiles/AAU_Publications/AAU_Reports/Sexual_Assault_Campus_Survey/Report%20on%20the%20AAU%20Campus%20Climate%20Survey%20on%20Sexual%20Assault%20and%20Sexual%20Misconduct.pdf.
I use this term, rather than ‘rape or sexual assault’ because of the controversies alluded to in the text about the language used in the surveys supporting these figures.
Humphreys, J. ‘11% of Women Students believe they were victims of sexual assault,’ Irish Times, 4 June 2015. The 11% figure comes from focusing on the previous year. The one-in-four figure comes from focusing on how many people were victims of sexual assault and/or attempted assault over a number of years.
For instance, compare the figures in the two U.S.-based surveys (n. 1 and 2) with the figures in the National Victimization of Crime survey. This survey suggests lower overall incidence for students and higher incidence for non-students: Sinozich, S., and Langton, L. Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013 (Department of Justice, Bureau of Statistics, November 2015), available at www.bjs.gov/content/pub/pdf/rsavcaf9513.pdf.
For a useful overview of criticisms, see Nelson, L. ‘Why some studies make campus rape look like an epidemic while others make it look rare,’ Vox 11 December 2014, available at www.vox.com/2014/12/11/7378271/why-some-studies-make-campus-rape-look-like-an-epidemic-while-others.
There is an interesting question here as to whether any figure higher than zero is acceptable. In principle, no: we obviously do not want anyone to be the victim of rape or sexual assault. In practice, it may be impossible to reduce the incidence of a particular crime to zero.
California Senate Bill 967 Student Safety: Sexual Assault makes it a condition of funding for the state’s universities to adopt affirmative consent standards; New York adopted a similar piece of legislation in Senate Bill S5965. Both pieces of legislation affect proceedings within universities and do not change the definition of consent for rape and sexual assault within the criminal law.
As is common in the literature, for the purposes of this article, I will view sexual assault and rape as primarily male-on-female crimes. I will not completely ignore the possibility of male-on-male, female-on-female, and female-on-male crimes (or other combinations of genders). Indeed, the majority of the analysis I undertake applies equally well to all categories. Nevertheless, the male-on-female scenario will be to the forefront and some of the points I will make will be tied to the socio-cultural history of that form of the crime.
In Ireland, where I am based, one of the responses to the studies on sexual assault on campus has been the launch of a ‘Smart Consent’ education campaign. See www.nuigalway.ie/smartconsent. Such educational programmes are common on U.S. campuses too.
Pells, R. ‘Students stage walkout in protest over “patronising” sexual consent classes,’ The Independent, 29 September 2016, available at: www.independent.co.uk/student/news/sexual-consent-classes-walkout-student-protest-york-university-workshops-a7338106.html.
To be clear, in identifying these two evaluations of sexual activity, I am not ignoring the possibility that much sexual activity is neutral or not particularly valuable. I ignore this ‘middle’ category since consent would still be essential to its permissibility.
The factors that make sexual activity valuable and disvaluable may be quite complex and variable.
I borrow the phrase ‘moral magic’ from Hurd, H. ‘The Moral Magic of Consent’ (1996) 2(2) Legal Theory 121–146.
For useful overviews see: Wertheimer, A. Consent to Sexual Relations (Cambridge: Cambridge University Press, 2003); Westen, P. The Logic of Consent (London: Ashgate, 2004); Westen, P. ‘Some Confusion about Consent in Rape Cases’ (2004–2005) 2(1) Ohio State Journal of Criminal Law 333–359; Husak, D. ‘The Complete Guide to Consent to Sex: Alan Wertheimer’s Consent to Sexual Relations’ (2006) 25(2) Law and Philosophy 267–287; Ferzan, K. ‘Clarifying Consent: Peter Westen’s The Logic of Consent’ (2006) 25(2) Law and Philosophy 193–217; and Hurd, H.’Was the Frog Prince Sexually Molested? A Review of Peter Westen’s The Logic of Consent’ 103(6) Michigan Law Review 1329–1346.
Westen (n. 15); he distinguishes between: factual attitudinal consent; factual expressive consent; prescriptive attitudinal and expressive consent; and prescriptive imputed consent.
On this point, see Dougherty, T. ‘Yes Means Yes: Consent as Communication’ (2015) 43(3) Philosophy and Public Affairs 224–253 who argues that communication is always essential for consent.
It is important for the ex ante portion to cover everything during a sexual encounter because, as is repeatedly emphasised below, consent to sex is an ongoing thing, which can be withdrawn at any time.
On the topic of rape myths, see Conaghan, J., and Russell, Y. ‘Rape Myths, Law, and Feminist Research: “Myths About Myths”?’ (2014) 22(1) Feminist Legal Studies 25–48, responding to Reece, H. ‘Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?’ (2013) 33(3) Oxford Journal of Legal Studies 445–473.
I am agnostic here about the underlying goal of the punishment. It may be retribution, deterrence, rehabilitation, etc. It does not matter for present purposes. All that matters is that there is some morally legitimate purpose.
The distinction is important. The app designers may intend for the app to do one thing, but the app may be capable of doing more.
Hess, A. ‘Consensual Sex App Good2Go has been Shut Down’ Slate, 7 October 2014.
http://sandtontechnologies.com and private correspondence.
Due to the fact that the website for the app has been taken down, the description that follows is based on (largely critical) media reports of how the app worked: Lomas, N. ‘Just Say No to this Consent App’ Techcrunch 1 October 2014; and Hess, A. ‘Consensual Sex: There’s an App for That’ Slate, 29 September 2014.
A small sample: Petrilla, M. ‘Can an app help reduce sexual assault on campus?’ Fortune 1 September 2015; Luckhurst, E. ‘We-Consent is the new app that lets you say “yes” to sex … is it useful or just plain creepy?’ Evening Standard, 23 July 2015; Ali, A. ‘We-Consent: American Businessman Launches Sexual Consent App for Students and Athletes which Records Mutual Sex Agreement,’ Independent 10 July 2015; Bernhard, M. ‘When it comes to consent to sex should there be an app for that?’ Chronicle of Higher Education 11 June 2015; Blewett, S, and Cashmore, A. ‘We-Consent: Anti-date rape app lets you record decision to have sex before you go to bed’ The Mirror, 13 July 2015.
Lissack is the executive director of the Institute for the Study of Coherence and Emergence (ISCE), which is also the organisation behind the development of the app. See www.isce.edu.
See the briefing materials for the app suite, available at http://isce.edu/WECBriefing.pdf.
Briefing document, available at http://isce.edu/WECBriefing.pdf, p. 1.
Briefing document, available at http://isce.edu/WECBriefing.pdf, p. 4.
Briefing document, available at http://isce.edu/WECBriefing.pdf, p. 4.
The description of this and all the remaining apps’ functionality is based on the briefing documents and video presentations, available from the We-Consent™ website: http://we-consent.org.
Briefing document, p. 9.
Briefing document, p. 11.
Briefing document, p. 11.
Briefing document, p. 13.
The functionality of this app is odd, in one sense, in that it just involves pledging commitment to existing legal standards. Nevertheless, it might be argued that this pledge would have an effect on behaviour that might not arise in the absence of a pledge.
Briefing document, p. 4.
Briefing document, p. 4.
Ord, T., and Bostrom, N. ‘The Reversal Test: Eliminating Status Quo Bias in Applied Ethics’ (2006) 116(4) Ethics 656–679.
This is obvious in the California and New York statutes mentioned earlier. It is also obvious in the Sexual Offences Act 2003 in England and Wales. This Act defined consent as ‘agreement by choice with the freedom and capacity to choose,’ placed an onus on the defendant to seek affirmative signals of consent, and introduced a series of evidential presumptions (ss. 74–76).
See Pinker, S., Nowak, M., and Lee, J. ‘The Logic of Indirect Speech’ (2008) 105(3) Proceedings of the National Academy of Sciences 833–838.
This is obviously controversial in cases of sexual assault and rape. Reliance on what was previously said and done between two or more parties is dangerous when it comes to interpreting signals of consents. That said, it is undeniably the case that people can create common languages of consent between themselves over time. This is particularly true in long-term relationships. These languages may rely on indirect forms of communication (i.e., may not involve explicitly stating a desire or wish to initiate sex). The problem with these forms of communication is that they create risk: someone may take the wrong meaning from what was said, which may result in non-consensual sexual contact (i.e., rape or sexual assault). Arguably, you could say that affirmative consent laws try to mitigate that risk by demanding direct and unambiguous forms of communication in the initiation of all sexual encounters. Given the balance of risks outlined earlier, this risk aversion may be appropriate.
For example, in England and Wales, deception as to the nature and quality of the act and impersonation provide irrebuttable presumptions of non-consent under s. 76 of the Sexual Offences Act 2003, but other forms of deception can be factored in under the general definition of consent under s. 74.
Dougherty, T. ‘Sex, Lies and Consent’ (2013) 123(4) Ethics 717–744. The position is not without its critics. See Rubenfeld, J. ‘The Riddle of Rape-by-Deception and the Myth of Sexual Autonomy’ (2013) 122(6) Yale Law Journal 1372–1443, as well as Dougherty’s response ‘No Way Around Consent? A Reply to Rubenfeld on “Rape by Deception”’ (2013) 123 Yale Law Journal Online.
Some of the discovered effects are remarkable. Video evidence and transcripts, even when combined with juror warnings, are often afforded excessive weight in juror deliberations (see: Wheatcroft, J.M., and Keogan, H. ‘Impact of Evidence Type and Judicial Warning on Juror Perceptions of Global and Specific Witness Evidence’ (2017) 151(3) Journal of Psychology 247–267); Larger images are known to be afforded more weight than smaller images (see: Heath, W., and Grannemann, B.D. ‘How video image size interacts with evidence strength, defendant emotion, and the defendant-victim relationship to alter perceptions of the defendant’ (2014) 32(4) Behavioral Science and Law 496–507); and jurors are more likely to hold that someone’s behaviour was intentional or deliberate if they are presented with video recordings of that person that are slightly slowed down (see: Caruso, E., Burns, Z., and Converse, B. ‘Slow motion increases perceived intent’ (2016) 113 Proceedings of the National Academy of Sciences 9250–9255).
For mock-jury evidence on this score, see Finch, E., and Munro, V. ‘Juror Stereotypes and Blame Attribution in Rape Cases Involving Intoxicants’ (2005) 45(1) British Journal of Criminology 25–48; and ‘Breaking Boundaries? Sexual Consent in the Jury Room’ (2006) 26(3) Legal Studies 303–320. Jurors in these studies seemed to routinely overvalue sexually enthusiastic behaviour, and discount many factors that undermined consent, and some, when asked to explain their views, even went so far as to state that active use of force to resist a sexual advance would be required to disprove consent. See also the studies by Ellison, L., and Munro, V. ‘Reacting to Rape: Exploring Mock Jurors’ Assessments of Complainant Credibility’ (2009) 49(2) British Journal of Criminology 202–219; and ‘Better the devil you know? “Real rape” stereotypes and the relevance of a previous relationship in (mock) juror deliberations’ (2013) 17(4) The International Journal of Evidence and Proof 299–322.
Dinos, S., Burrowes, N., Hammond, K., and Cunliffe, C. ‘A systematic review of juries’ assessment of rape victims: Do rape myths impact on juror decision-making?’ (2015) 43(1) International Journal of Law, Crime and Justice 36–49.
Ellison, L., and Munro, V. ‘Getting to (not) guilty: examining jurors’ deliberative processes in, and beyond, the context of a mock rape trial’ (2010) 30(1) Legal Studies 74–97; and Ellison, L., and Munro V. ‘“Telling Tales”: Exploring Narratives of Life and Law within the (Mock) Jury Room’ (2014) 35(2) Legal Studies 201–225.
There is some debate here. Some argue that much of the attrition in rape and sexual assault cases occurs early on in the investigation and prosecution. Once a trial is brought against an accused, the conviction rate often holds up well compared to offences. For a sense of the complexity involved in interpreted attrition rates, see Martin-Jehle, J. ‘Attrition and Conviction Rates of Sexual Offences in Europe: Definitions and Criminal Justice Responses’ (2012) 18(1) European Journal on Criminal Policy and Research 145–161.
On the concept of consent (and by proxy rape) as continuing acts, see Kaitamaki v R [1985] AC 147.
Perriloux, S., Duntley, D., and Buss, D. ‘Blame attribution in sexual victimization’ (2014) 63 Personality and Individual Differences 81–86.
Lissack, M. ‘Foubert’s Straw Man – Rejecting false arguments against the We-Consent™ app suite,’ available at www.linkedin.com/pulse/fouberts-straw-man-rejecting-false-arguments-against-lissack?published=t.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Of course, the force requirement has never gone away in some jurisdictions. It has, however, been relaxed or reformed in many U.S. states and in England and Wales and Ireland.
Sexual Offences Act 2003 (England and Wales), particularly ss. 74, 75, and 76.
It is logically possible that everyone wants to have sex with people who also want to have sex with them, but this is unlikely to be true in reality.
These were the essential facts of the charges in the Julian Assange rape extradition case: Assange v Swedish Prosecution Authority [2011]EWHC 2849.
That said, at least Good2Go tries to facilitate this by including the ‘Yes, but…’ option, though as others have pointed out it might have been better if it was simply a ‘we need to talk…’ option, available at http://techcrunch.com/2014/10/01/good2go.
Bernhard, M. ‘When it comes to preventing sexual assault, should there be an app for that?,’ The Chronicle of Higher Education 11 June 2015, available at http://chronicle.com/article/When-It-Comes-to-Preventing/230823.
The mock jury trials by Finch and Munro and Ellison and Munro (n. 46) are discouraging in this regard.
The consent classes currently on offer may or may not be appropriate and may or may not involve biasing problems of their own. The argument here assumes such educational offerings are less biased, but that assumption may be incorrect.
It would not eliminate all problems associated with the interpretation of consent signals. There would still be problems with indirect or ambiguous forms of communication.
The clearest expression of this idea comes from Kelly, K. The Inevitable: Understanding the 12 Technological Forces that Will Shape Our Future (London: Viking Press), who suggests that ‘tracking’ is just an essential feature of these technologies.
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Danaher, J. Could There Ever be an App for that? Consent Apps and the Problem of Sexual Assault. Criminal Law, Philosophy 12, 143–165 (2018). https://doi.org/10.1007/s11572-017-9417-x
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DOI: https://doi.org/10.1007/s11572-017-9417-x