Mick Fuller’s Sexual Consent App: The “Worst Idea… All Year”

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Police Fuller and Berejiklian

This week the New South Wales Police Commissioner has proposed developing an App to record sexual consent.

The idea comes on the back of his recent assertion before the NSW Parliament that sexual assault cases are notoriously difficult to prosecute, and have very low rates of conviction.

Proposed sexual consent App

While the functionality of the Police Commissioner’s sexual consent App idea has not been outlined, the idea has been criticised almost universally.

Many have expressed the view they would not want their consent recorded, lest that evidence be used at a later time by unscrupulous sexual partners to brag or gloat, or for even more sinister purposes such as to blackmail or extort.

Others have raised concerns about whether a failure to record sexual consent might raise an inference of a lack of consent, which could lead to injustice. Or conversely, that an inference of consent might be raised in the event consent is recorded but one person later changes their mind.

Still others have mocked the notion of pulling out a phone before, or during, intimate relations, pointing out that turning on an App and recording consent is unrealistic.

And what about the situation where an assailant coerces a victim to record consent or, depending on how this App is supposed to work, authorises consent themselves?

The issue of consent is, in the eyes of many, one that cannot be solved by a piece of technology.

Even the Police commissioner himself doesn’t seem all that convinced his idea would be workable, saying on the one hand it could operate in the same way as other Apps such as the COVID tracing App and could “keep matters out of the justice system”, while on the other admitting it might be the “worst idea he has all year.”

Public reaction suggests that most people are in agreement with the latter.

Strip searches – a form of state sanctioned sexual assault

Many people, including Greens MP David Shoebridge, have also been quick to point out that strip searches are a form of sexual assault and yet use of strip searches by the NSW Police Force is on the rise, particularly strip searches of indigenous children and young women.

A recent inquiry by the Law Enforcement Conduct Commission also found that a significant number of strip searches are performed unlawfully. It’s been very well documented that strip searches have lasting and traumatic effects on many people who have been subjected to them, particularly children.

Early concerns about the proposed consent app relate to privacy – whether two people actually want to have their consent on record. There are also fears that any proof could potentially be used against someone if the other person/s involved wanted to brag about the encounter or use the consent for exploitation.

Legal minefield

Other potential legal ramifications include situations where the app is not used and whether that would automatically infer a lack of consent. There is also an issue around the fact that sexual encounters can include several different types of sex acts. A person may consent to some acts but not others. Consent can be withdrawn at any time during a sexual encounter.

The issue of consent is one which lawmakers have been grappling with for some time, as sexual assaults continue to rise across New South Wales.

Last year the Law Reform Commission proposed changes to the NSW legislation which have been tabled in state Parliament. These include that sexual consent shouldn’t be presumed just because a person does not physically or verbally resist.

For this reason, says the Police Commissioner, the app is a good idea. Because it “keeps people out of the justice system, it’s not about how it works in the justice system. We already know the journey in the justice system is such a difficult one for victims.”

It seems incredibly naive of the Commissioner to suggest that a consent app could be developed to work “outside” the justice system.

The Danish experience

Denmark recently launched iConsent, an App which has been described as a practical answer to a new Danish law which states that sex without explicit consent is a criminal offence. The law was introduced to assist Danish prosecutors who often struggle to prove violence and coercion were used to secure sex.

The iConsent App allows people to complete a transaction authorising sex. This mutual consent token is valid for one-time sexual intercourse only and expires after 24 hours. In the background, the App encrypts and stores the digital contract to be recalled later, if needed, as proof of consent.

But this App has come under serious criticism, with lawyers suggesting that the 24-hour window allows time for people to change their mind or try to prove someone has not committed rape.

Mostly, the general population appears to consider the App a joke, and a ‘passion killer’. The App has only had about 5,000 downloads amongst a population of more than five million.

‘No’ means ‘no’

Psychologists are also warning that digitising sexual encounters will lead to desexualising our sex lives, and could potentially mean that eventually people will lose the important skill of being able to ‘read’ others when it comes to intimate body language and feelings. It also undermines respect and trust that are vital to intimate relationships.

These psychological arguments are important, because at the crux of the issue of consent is  helping people to understand that ‘no’ is not often expressed in a straightforward, verbal or physical way in sexual encounters, but it always means no. And if there is any doubt, then doubt should also be considered to mean ‘no’.

Above all, so far the majority of feedback is very clear about the fact that an app will not solve the problem of sexual assault.

As Catherine Lumby, a professor at Sydney University who specialises in ethics and accountability, says: perpetrators who make the decision to sexually assault women don’t care where, how and why they do it ….”

“They certainly wouldn’t say, ‘I’m thinking of having sex with you now, would you like to sign up to this app and say yes?’.”

The recent sexual assault and historical sexual assault allegations raised in Federal Parliament, along with the nationwide March 4 Justice rallies, the extensive media coverage and the social media discussions that are prevalent in our news feeds right now mark a critical moment that sexual assault victims and sexual abuse survivors have been waiting for, for a very long time.

We must keep the issue of violence against women in the spotlight, so that we can begin to work to resolve it, once and for all.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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