Consent is not a commodity. Tech will never make it one

The launch of a “consent condom” by Argentine condom and sex toy company Tulipán is the latest attempt to take commercial advantage of consent culture, following global awareness movements #MeToo and #WhyIDidntReport. The condom box takes four hands to open and is being promoted with the hashtag #PlacerConsentido, meaning “permitted pleasure”.

Tulipán have said that the product was generated to raise awareness rather than to act as a tool that facilitates and guarantees consent. But implying that consent only happens once before sexual activity takes place reduces the definition of consent to a check box. It doesn’t take into account that consent can be coerced and withdrawn at any point.

This issue is reflected by the majority of “consent tech” on the market, such as consent apps that act as a digital contract between two people engaging in sexual activity, which requires the signatures of both people, the click of a button, or a video of verbal consent.

Created by Dutch company LegalThings, the LegalFling app enabled users to gain “explicit sexual consent” along with a “guarantee” of factors such as condom use, STD free status, and a yes or no to BDSM. The app worked by creating a live contract, with the added feature of a button that would issue cease and desist letters if pressed because of a breach of contract.

The LegalFling app has been removed from both the Google Play and Apple’s app stores due to a violation of policy

Built using blockchain technology, all interactions were stored within the app and time stamped, as well as encrypted. The app also allowed consent to be withdrawn at any time by touching a button. Currently, the LegalFling app has been removed from both the Google Play and Apple’s app stores due to a violation of policy.

LegalFling have put this down to the “mature topic” their app confronts, though complaints or Google and Apple fearing liability are more likely true.

Aside from technology that clumsily aims to standardise the concept of consent, the market for tools that want to help women avoid sexual assault is also growing.

Rebecca Pick developed The Personal Guardian rape alarm after a girl was raped in the apartment building next to her at university. It weighs 40g and can be attached to most pieces of clothing. The user can activate their mobile phone by pressing two buttons on either side of the device, which calls the nearest police station and allows them to monitor the situation, also sending them a GPS location if they decide to act.

She told the Guardian, “They [the police] can tell the difference if you are laughing and giggling or if you are screaming, or if there is a difference in your breathing, like a panic.”

Products like the SipChip from Undercover Colours, and their initial creation, a hue changing nail varnish that both detect whether a drink has been spiked, approach sexual assault prevention from an early intervention angle. Yet, the prevention part falls solely on potential victims.

While maybe well-intentioned, each of these products have faced critique in their misunderstanding of consent and situations in which sexual assault actually occurs.

Consent is an ongoing concept

National spokesperson for Rape Crisis England & Wales, Katie Russell says that “while a step towards focusing on consent is welcomed”, products such the SipChip and The Personal Guardian create “a false sense of security”.

She says, “They put the responsibility on women and girls to keep themselves safe. This misplaces the narrative and starts directing the message at women that sexual assault is something they have to avoid and prevent.”

“Technology like consent apps and a consent condom misunderstand what consent is. The law understands consent as a choice made when a person has the freedom and capacity to make that choice,” says Katie.

“The law also understands consent to sexual acts as something that can be withdrawn at any moment, and that you may consent to one sexual act and not another, or to sexual acts with conditions, such as wearing a condom.”

Around 90% of rapes are committed by someone the victim knows. When in the company of someone you know or trust, you’re much less likely to carry drink-spiking detection devices or suggest opening a consent app

With each sexual situation involving two or more people being different, Katie feels that it’s impossible for an app to factor in features that cover every possible scenario, and that updates itself as quickly as a real life situation changes.

“Consent is an ongoing concept,” says Katie. “The moment somebody records themselves consenting, signs their digital signature, or clicks a button in an app, that ‘proof’ of consent becomes instantly useless because everyone has the legal and moral right to change their mind.”

She highlights the issue of coercion, pointing out that technology can’t tell if somebody is agreeing to a sexual act against their will, or whether they are in fear for their or somebody else’s physical safety.

Around 90% of rapes are committed by someone the victim knows. When in the company of someone you know or trust, you’re much less likely to carry drink-spiking detection devices or suggest opening a consent app.

Navigating social and intimate situations in this heightened state of acute stress shouldn’t be the solution or the norm — along with the burden of guilt it creates, women are denied quality and genuine human interactions

Current “consent tech”, then, plays into old misconceptions, like that rape is usually committed by a stranger, when statistics show the opposite to be true.

Suggesting that women should live in a constant state of high alert only worsens the fear we already feel about sexual assault. Navigating social and intimate situations in this heightened state of acute stress shouldn’t be the solution or the norm — along with the burden of guilt it creates, women are denied quality and genuine human interactions.

Shifting the onus onto women to assume that everyone is a potential perpetrator, and to wield the tools and responsibility to protect themselves, points the figure at victims: whether you’re assaulted or not depends on your ability to avoid sexual assault, not on your attacker.

Shifting the focus away from victims

Katie isn’t convinced that these products genuinely have potential victims’ best interests at heart.

“What’s the aim here? Are they safeguarding the man against accusations rather than intending to make sure genuine, ongoing consent has been achieved at every stage?” she asks.

“There’s a bigger issue going on here. It fuels an incorrect narrative that men are more likely to be falsely accused and therefore have to protect themselves. That’s simply not true, statistics prove that.”

“They are profiting off the legitimate fear women feel and exploiting their concerns”

Of the victims that come to Rape Crisis England & Wales for help, 75% of them seek help for a sexual assault that happened around a year ago. Katie puts this down to the fear of being blamed and not being believed, something that the idea that false accusations are common only exacerbates.

She says, “Whether these products are being created with good intentions or not, ultimately these companies are profit driven. They are profiting off the legitimate fear women feel and exploiting their concerns.”

Plus, the most common form of drink spiking is to add more alcohol that the victim isn’t aware of, rather than spiking with other substances, which a drink chip can’t detect at all.

Does this tech have legal clout?

While more than one consent app claims or appears to form legally binding contracts between two consenting adults, Victoria Myers, Graham Coffey & Co. Solicitors’ Head of Abuse doubts they’d stand up in court as definitive and irrefutable proof of consent.

It couldn’t possibly prove that coercion, violence, threat and intoxication weren’t part of the process at any point

This is mainly because the law understands consent as an evolving process, something that consent technology has yet to fully grasp. It couldn’t possibly prove that coercion, violence, threat, and intoxication weren’t part of the process at any point.

A contract formed by a consent app could, however, be used as circumstantial evidence: something that could have an impact when combined with other factors, like the testimonial of the alleged perpetrator or witnesses. This is where the use of consent technology becomes sinister.

“It could have some sort of impact, but not on its own,” says Victoria.

“The attitude of: ‘You agreed to have sex with me so why should I stop now’ is still very pervasive. Technology like this actually protects offenders rather than making sure consent was given and there throughout”

She feels that consent technology is “extremely dangerous”, pointing out that withdrawing consent and the other person continuing or only consenting to one act and the other person engaging in another are all criminal offences, something that consent apps and other technology only superficially address.

“It’s a dangerous thing to bring into a courtroom. Consent is a continuous thing, it’s always ongoing.’ says Victoria. “The attitude of: ‘You agreed to have sex with me so why should I stop now’ is still very pervasive. Technology like this actually protects offenders rather than making sure consent was given and there throughout.”

Many of the victims of sexual assault that Victoria works with have been raped by partners, colleagues, or friends. She says most of them feel an immense amount of guilt and shame, which sometimes causes PTSD.

She says, “For something that can have effects as serious and life-changing as that, we can’t be pinning the issue of consent on something that acts like a check box. If these products raise awareness of anything, it’s that we are not doing enough to educate people about consent, because they miss the point entirely.”

Graham Coffey & Co. sought out the advice of charities that deal with sexual assault and abuse when designing the sexual assault and violence section of their website. They have included trigger warnings throughout and made sure the site can be quickly exited from any point, redirecting to the BBC’s homepage, to help victims who are being watched by their abusers.

Victoria highlights that some of the features included on the page that have been designed to help victims navigate throughout wouldn’t be there if they hadn’t sought the help of sexual assault charities. This is something that she thinks brands creating consent products clearly aren’t doing.

Not everyone is included in the narrative

A consent condom that’s placed inside a box that takes four hands to open assumes that everybody has two hands and the bodily function to use them. This and other consent technology, like button-activated rape alarms and consent apps that require digital signatures or thumb prints, completely disregard those who are not as able-bodied.

Victoria adds, “When it comes to acts that involve more than two people, this technology has further pitfalls. The consent condom, for example, is making assumptions about the types of sexual relationships people have and assuming they’re just between two people.”

Public speaker and consent workshop facilitator Heather Robinson says that working class woman and black woman, who are most likely to face barriers to help with sexual assault and justice, are also being treated as an afterthought.

“I’d be really interested to see how much these condoms cost, how much more are we going to be expected to pay versus a standard condom?” she says. “It is really dangerous when we look at the way victims are ignored and shut down. Black women and working class women are least likely to be believed and least likely to be able to afford the ‘luxury’ of products that will apparently keep them safe.”

There’s no substitute for education

There’s currently no way to completely digitise the consent process, and companies attempting to do so trivialise the most important parts of it, like respect for the other person, valuing their comfort and pleasure as much as your own, and a complete understanding of their bodily autonomy.

“Ticking a box at the start shifts obligation”

Heather says, “There is often a lot of pressure on those being asked for consent to say ‘yes’ or ‘no’ and to be very clear. People should be as clear as possible with their desires, but in that case, the burden is being placed on them entirely.”

“There are external factors that might influence what they verbally agree to,” she adds. “Consent technology like apps are about avoiding the questions you should be asking and avoiding responsibility. It is difficult to look out for the verbal, physical, and emotional signals that someone is ok throughout, but it’s essential, so you have to be present. Ticking a box at the start shifts obligation.”

Flocking or fawning is when a victim becomes completely agreeable and cooperative in an attempt to placate their attacker and avoid further harm

During her workshops, Heather encourages participants to focus on breaking down communication barriers and making sure the other person has all the information they need to be able to respond honestly and without pressure. She says, “Asking someone if they want to hang out is not being specific or arming them with the information they need to respond if you actually just want to engage in sexual activity”.

She also expresses the importance of looking out for trauma signals, which typically take the form of flight, fight, freeze, or flock responses. Flocking or fawning is when a victim becomes completely agreeable and cooperative in an attempt to placate their attacker and avoid further harm. This includes becoming physically cooperative, with victims of sexual assault often going limp and not physically resisting their attacker.

Flight responses can manifest as somebody not making eye contact or looking towards the door, while not feeling able to physically leave. Technology that replies on a woman’s scream to indicate distress doesn’t take into account how common freeze responses are, where a victim isn’t able to fight or verbally express their distress because of dissociation or shock.

“Technology can be useful for spreading awareness of predatory behaviour,” says Heather. “Like dresses that have been fitted with pressure pads that can indicate how often a woman is groped in a nightclub situation, raising awareness of how common inappropriate sexual behaviour is.”

“Having a consent app on your phone is about a fear of being prosecuted. You are also telling the other person that you don’t have the emotional toolkit to be taking part in this”

PR consultant and survivor of sexual assault Madelaine Hanson says that when she confronted her abuser years later, “His concern was, ‘are you going to tell anyone?’ and not at all about what he had inflicted on me and how he made me feel”.

“Having a consent app on your phone is about a fear of being prosecuted,” she says. “You are also telling the other person that you don’t have the emotional toolkit to be taking part in this. These products imply that assault and consent have clear black and white signals. These products don’t reflect the experiences of victims.”

Madelaine feels that consent technology actually makes it difficult for women to express that they are uncomfortable because it puts them on the spot and it seems automatically accusatory if they disagree to any terms.

While Madelaine doesn’t object to the use of drug-detecting drink chips, rape alarms, and “women doing whatever they feel they need to do to be safe”, she highlights that these products imply that the woman is in control in these situations, which “she is not”.

A potential victim can’t control the actions of a potential attacker. They can only limit the damage, which is far from a solution. Pepper spray and chameleon nail varnish help us to exist inside rape culture but do absolutely nothing to dismantle it. We have the basic right to exist outside of this narrative altogether.

If you are affected by any of the issues discussed in this piece, please visit rapecrisis.org for guidance

Featured image is of three people at a bar, holding drinks in their hands. The image is cropped to focus on their hands and drinks. There is a white pattern of short squiggles overlaid onto the bottom of the picture to create a sense of apprehension

Page last updated May 2019