“iConsent is symptomatic of a culture that puts the onus on sexual assault victims to both protect themselves from attack, and then to provide overwhelming evidence to prosecute the perpetrator."
Last year, Denmark strengthened its rape laws by criminalising sex without explicit consent.
The new legislation came into effect in January as part of a plan to broaden the circumstances that can constitute rape in the eyes of the law. Per the Danish justice minister, Nick Haekkerup, “It will be clear, that if both parties do not consent to sex, then it’s rape.”
Supporters are hoping for a similar story to that of their neighbours across the Øresund. In Sweden, where a similar law was introduced in 2018, rape convictions increased by 75%.
Rape convictions are troublingly low in every country. In the UK, as little as 1% of rape allegations now lead to a conviction (and this only accounts for the reported incidents). Most countries report similar numbers. Improving the quality of evidence, particularly in determining if consent was given, is central to plans for increasing conviction rates and better supporting survivors.
And so, hot on the heels of the new law in Denmark, came last week’s launch of iConsent, a free app that offers people the chance to provide consent through their phone. The app connects users via their phone numbers and gives them 30 seconds to send and accept consent requests.
On doing so, a digital contract is formed to cover a 24-hour period. Said contract is encrypted and securely stored, only to be shared in the event of a criminal investigation. (Side note – if this does bring up a history of ‘consents given’ it risks the same pitfalls as sexual behaviour evidence. Though sexual history is irrelevant, biases and myths about a ‘promiscuous’ victim still very much exist. Imagine the question “If you had no intention of consenting to sex, then why was this app on your phone?”)
Predictably, parts of the media have zeroed in on what it means for the ‘natural’ sexual experience. Some have labelled it a ‘turn-off that could rob lovers of the ability to read each other’s desires’.
Would that it were so simple.
Now, I believe that the iConsent app is well-intentioned. It appears to be a genuine attempt to promote a culture of gaining consent and to assist prosecutions where consent was not given, and it provides links to support networks and sexual wellness resources. There may well be situations in which it could be helpful. However, the anti-climatic quality of iConsent is far from the only criticism of that can be made.
It is terribly thought through and deeply problematic.
Firstly, the app does not consider cases in which a victim is forcibly coerced into using it, or when the victim’s phone has been hacked. In fact, it would serve to further protect the perpetrator by providing a false statement of consent. (It is worth stressing at this point that Danish courts have not yet commented on what role such an app could play in criminal cases.)
The 24-hour window is also very troubling. A ‘yes’ on Friday night does not mean ‘yes’ on Saturday afternoon. It does not mean ‘yes’ minutes later if a person requests to stop and says ‘no’. Consent is not something that can be resolved by legal contract, it is something that should be sought by both parties before, during and before the next intercourse. Failing to recognise that and reducing consent to a “one-click day pass” overlooks, for example, the staggeringly high number of sexual assaults that take place within relationships where there may be both consensual and non-consensual activity.
Pleasingly, there has been vocal opposition to the app (and the idea of it). But the problem is far greater than a group of app designers in Scandinavia, and we would do well to remember that. iConsent is symptomatic of a culture that puts the onus on sexual assault victims to both protect themselves from attack, and then to provide overwhelming evidence to prosecute the perpetrator.
Doesn’t “Well, if you had a consent app installed on your phone…” feel like the next iteration of “You should have kept an eye on your drink”?
This is the same culture that gives us that entitled viewpoint whereby consent for sex is as easy as ‘reading someone’s desire’, encouraging people to interpret the actions of another in whichever way they wish. It is not one that reflects the experience of millions of survivors of sexual assault and rape.
Perhaps it speaks to the limitations of solving such an insidious problem via technology.
That is not to say that technology has no role to play in supporting survivors and improving conviction rates. My own research with survivors’ networks in Kenya has benefitted greatly from MobApp, an app which helps volunteers to capture testimony from victims of rape.
Technology also underpins the advances we have made in DNA analysis, a key to identifying hotspots for sexual violence and in tracking down serial offenders.
But rape, and the wicked issue of sexual violence more broadly, is deeply rooted in our society, our culture, and in the failings of our justice system. Serious reform across all three are required and, though technology can facilitate some change, it requires joined-up thinking that addresses this reality. Any designed interventions should have survivors consulted at every step, shaping ideas that can actually benefit the pursuit of better outcomes.
Last year, I wrote for The Conversation on the shortcomings of policies and protocols in place to tackle sexual violence, and this year will see the formal rollout of the Murad Code, a global code of conduct for conflict-related sexual violence (a collaboration between the Institute for International Criminal Investigations (IICI) and the Preventing Sexual Violence in Conflict Initiative of the UK government (PSVI)).
Such things are well-researched and offer plenty of value but tend to come unstuck on implementation because, quite simply, sexual violence is not homogenous. It differs from country to country, region to region, and from case to case. These protocols and codes suffer from not understanding the various lived realities of survivors and their support networks, just as the iConsent app failed to.
Let me be clear, effectively combatting sexual violence is complicated.
Consent, though, is not complicated. The lack of a means to provide legal confirmation of consent was not the reason for low (and falling) conviction rates. The reasons are known to us, and only holistic reform of justice systems, policies and culture will buck the trend.