Sexual Consent: Yes for the Record

You’re with your partner. The mood is set for the best time together. The lights are dim, there’s soft music in the background, and even some scented candles. You’re necking, canoodling—you know, the works. And then both of you ‘record your respective consent’ on an app that you recently downloaded. Does that burst your bubble? Pop!

There now exist apps that actually enable a couple to register their consent before engaging in a sexual act. With collegians as their main target, the primary aim of the makers of such apps is to get people to talk about the all-important necessity of consent—a word that quite simply means ‘to agree’. We-Consent is one such app. According to Michael Lissack, its maker, it is exclusively for the US market and something that he doesn’t see making inroads into India. “There are social standards in college campuses across the US. In the absence of the rule, consent by itself is meaningless,” he says. The rule he refers to is one found in the rulebook on sexual health across college campuses in the US, mandated by law. To explain this simple concept, students of New York University came out with a video titled Let’s Talk About Consent last year, the result of 18 hours of interviews with students and recent graduates who shared what consent meant to them. Views ranged from “It’s about respect” to “Consent means you have ownership over your own body”. The video explains the signs you need to pay attention to while getting close to your partner/s.

Predictably, Lissack’s app wasn’t welcomed on its debut. While he says that the US media’s response was ‘interesting’, “The Australian media hates it.” The purpose of the app, he adds, is not to record whether partners indulge in a sexual act, but to record mutual consent for such an act. “We don’t care if you do it or not, but we do care that you talk about it,” he says. “It matters to talk about consent for it triggers the discussion around it.” He has devised another app called I’ve Been Violated. “Eighty-five per cent victims don’t want to talk to the police or healthcare authorities if they’ve been violated,” he explains, “This app allows a person to record their tale as to what happened. If they should decide, they can record an encrypted conversation.” What-About- No and Changed-Mind are his other apps.

The website of We-Consent explains what affirmative consent is and why it needs to be discussed. The app works by asking for the names of the user and the intended partner while recording responses with the phone’s camera. After getting identities, it asks both individually if they would like to register their ‘yes’. If either party demurs, the encrypted video recording self-destructs. If both say ‘yes’, a copy of the video is kept confidentially on record, to be shared with law enforcement agencies in case a judicial process requires such evidence. These videos are not otherwise available to users.

In the US, consent has been under contention in several cases of date rape and campus rape. In one famous case, a Columbia University student called Emma Sulkowicz carried a mattress to her graduation last year in protest because her college had not expelled her alleged rapist. She started a ‘mattress movement’ calling attention to campus sexual assaults. By Sulkowicz’s version of the assault, her ‘yes’ had changed to a ‘no’, which she says her partner paid no attention to. The refusal to understand that ‘no means no’, say consent activists, is the reason the issue needs wide discussion.

In India, the discourse has a long way to go. Professor Amrit Srinivasan, a sociologist who recently retired from IIT-Delhi, worries about the absence of ‘informed consent’ in Indian society. “For girls or for the poor, consent is an alien category,” she says, “While they become more aware as they grow older, they’re often unaware of the power and responsibility that comes with consent. Women need to have ‘agency’—they need to know that they can withhold or give consent.”

For Debopriya Sarkar, a Delhi-based entrepreneur, consent is the most important thing in any relationship, an issue she believes has been swept under the bed. “Any sexual act without consent amounts to rape or sexual violation, for me,” she says, “Anyone has the right to put a stop to anything she or he is not comfortable with.” She would not use an app to register consent, however. “You cannot judge a person’s consent based on an app,” she says, “If your partner is saying ‘no’ or ‘I don’t want to’, that alone should make it clear that he or she is not interested or comfortable with it.”

While adults do not always enter a sexual relationship with the intent of marriage, many still take it as implicit and their consent is conditional on it. This lack of clarity often leads to unwarranted cases of rape being filed against either partner. Tapan Thatte, an advocate who works at the Bombay High Court, explains over email, ‘Though on paper the distinction between a ‘false promise of marriage’ and ‘breach of promise of marriage’ resolves all the controversy, in reality segregating the two is a tough task. How can the court be expected to conclusively decide the mental state of a person which he alone is aware of? The common course that is followed by courts is to look for some other material which either points at the bona fides or mala fides of the offender at the time of giving of the promise of marriage. And thus, the whole exercise hinges too much on factual aspects of each and every case.’

Facts and emotions differ from case to case, and a third person cannot determine the intent of either partner with certainty. Could clearer communication solve the problem? That is what consent-recording apps aim to do—they insist on clarity. Says Lee Ann Allman, maker of the now defunct app Good2Go, “It’s especially useful when there is not enough education from other sources. State laws are changing, student handbook policies are changing—so a tech tool is always at hand. [Good2Go] was really meant to start a conversation and help get people on the same page.” Allman is now working on a revised version of the app, to be launched under a different name. “We’re going in a different direction. It was really an excellent conversation starter. I think there is still a lot of confusion out there. The way we want to help… is to find out what is really effective and helps prevent assault,” says Allman. The inability to understand what forms consent, she says, is a failure of education. “It has to start early and reinforced time and again, and this change has to happen at the societal level for people to really understand,” she says.

In an ideal world, consent should have no space for confusion. A ‘no’ is always a ‘no’. A ‘yes’ can turn into a ‘no’ whilst in the act—and it’s then a ‘no’. There is no grey zone here. Says Rachna K Singh, a psychologist and lifestyle expert, “A lot of times, it’s in the flow, and a verbal consent would suffice. It would be strange to use an app in that case. A couple wouldn’t ‘say it out loud’ in most cases.”

Speaking of signals that may be perceived as being a ‘yes’, a case that has been highly talked about is that of a song sequence in SS Rajamouli’s film Baahubali which portrays a woman being disrobed and apparently tamed into submission. While many see it as innocuous romance, discerning viewers detect a disturbing lack of consent. Countless Indian movies have had depictions that seem to disregard the need of a clearly conveyed ‘yes’.

On why we are so shy to talk about consent, explains Professor Srinivasan, “Mistrust is huge between young men and women, which often turns into animosity and violence. Women are now enjoying independence to a great degree, but I can’t say if [men and women] are willing to take the consequences of a ‘yes’ or ‘no’. It’s important that partners talk about responsibility and choice. Mental liberation is linked to sexuality as well, and women should come to terms with their minds and their bodies.”

While consent Apps may serve the purpose of clarity, they also put the privacy of individuals at risk. Arindam Mukherjee, a lawyer at the Supreme Court, says, “The app would be a bit of a double-edged sword. It’s difficult to give a concrete answer as to whom it helps. Maybe there’ll be less frivolous allegations, but one would have to look at the disclaimer operators provide, and what the involved parties are required to do.” Mukherjee also says while the apps may be a step in the right direction, their use is limited. “More than law and order, [consent] is a sociological issue. I don’t know how befitting the use of technology would be to use recorded consent. If figuring out consent was that easy, one would not have a trial in rape, we would be home free. We would not require a trial, because it is centred on whether there is consent, and there is no short cut to figure out what it is,” he adds.

According to Consentissexy.net, a website dedicated to clarifying the concept, ‘Consent must never be assumed or implied, even if you’re in a relationship. Just because you are in a relationship doesn’t mean that you always have consent to have sex with your partner.’ However, would couples keep recording their consent before every sexual act? Also, is a recording enough to prove consent? Says Thatte, ‘Though a recording of consent will provide substantial insulation against accusations of rape or other sexual offences, it is not fool-proof. An accusation that calls into question the recording of consent itself can stultify the whole arrangement.’

That’s why, the ultimate aim of her app, Allman says, is to not have the need to use it. “We anticipated the awkwardness about the app. How would you say, ‘We need to record consent on the app?’ But our research shows that this has been validated. Users could get over the awkwardness issue. Ultimately, the idea is for them to get used to what consent means. If one is mature enough, you wouldn’t even require the app. The long term goal is for students to learn the importance of giving and understanding consent,” she says.

For Bombay-based Ram Pandey, a data analytics consultant, “Consent is murky. People who understand the concept, and are half-decent, will move away when their partner is uncomfortable. But there [are those who] could feel if they’ve gone this far, might as well get done with it.” He feels consent is not an issue of awareness as much as norms of intimacy. “You know, even the mention of the word ‘sex’ can ruin it for some people. How would taking out an app help?”

But that’s the thing—more than just getting people to record consent, what apps such as We-Consent are trying to achieve in their own crazy yet trailblazing way, is to get people to talk. If they get people to question what consent is and wrap their heads around it, it could have far-reaching effects. As Allman says, “Consent should be voluntary, unambiguous and conscious. There’s a difference between inebriated and incapacitated, and that’s the difference young adults have to understand. You could be capable of giving consent when inebriated, but not when you’re incapacitated.”

So long as such apps force us to think about consent, they should be welcome. After all, they try to enhance trust between partners. And they may just return us to a time when a look and a touch were enough to say and mean ‘yes’.

Good2GoI’ve Been ViolatedLet’s Talk About ConsentWe-ConsentWhat-About- No