Not long ago, California enacted legislation requiring college students to obtain explicit consent before proceeding with a sexual encounter. California is not alone in this push; universities across the nation have been grappling with issues of sexual assault and, consequently, rewriting their policies to address them. Affirmative Consent particularly is a popular policy that is likely to continue gaining traction. SB 967 mandates that, rather than proceeding until a partner says “no,” participants should seek an explicit “yes” throughout the encounter. The affirmation does not need to be verbal. It may be communicated a variety of ways, even via an enthusiastic nod or smile, as long as it is unambiguous and ongoing throughout the act. To further assist with resolving possible uncertainty, several applications have been developed. But for a variety of reasons, the current technology currently lags behind the changing legal terrain.
Shortly after SB 967 was enacted, Good2Go was launched. Although short-lived, the app was aimed at facilitating consent between students, but was derided for a variety of issues. Ironically, the app simply asks if the parties were “Good2Go?” and failed to even mention the word “sex”. The specific acts that are being consented to are very unclear. The participants may come away with very different expectations. Additionally, the app keeps a private record of all its sexual consent records, ostensibly to be accessed by law enforcement.
The most substantial issue with the app (and a consent app in general) is that it fails to address the fluid nature of consent. While it does give a warning that “yes” can changed to “no” at anytime, the app has no way of tracking that change of mind. In that regard, it may result in more harm than good. Victims testifying in court would undoubtedly be confronted with their affirmation via the app despite their later objections. Just a few weeks ago, in a rape trial featuring two St. Paul’s boarding school students in New Hampshire, the defense (successfully) attempted to undermine the accuser’s credibility by pointing out how cordial they had been leading up to the assault. The accuser’s acceptance of an invitation to a roof was construed as consent for the proceedings of the entire event. Had she used the app in this situation, she likely would have faced an even greater challenge to her credibility. Together, these factors lead to the conclusion that an app such as this one must feature much stronger consideration of the many nuances of consent. Consent Apps such as Good2Go must rethink their entire approach to consent if they would like to become relevant or even effective in the fight against sexual assault on university campuses.
Jordan Lewis is an editor on the Michigan Telecommunications and Technology Law review, and a member of the University Michigan Law School class of 2017.