In the midst of the #MeToo movement, a Dutch company is seeking a way to formalize (and monetize) sexual consent with an app, LegalFling. The premise is that parties to a sexual encounter can sign a contract in advance specifying terms, boundaries, and preferences.
LegalFling isn’t the first and, sadly, won’t be the last app to promise a foolproof means of securing consent. None do much good, and every app that attempts to reduce consent to a pre-encounter “yes” or “no” is doing a great deal of harm.
There’s the common-sense problem with trying to secure a sexual partner’s consent with a contract: Consent is rolling; it can be withdrawn at any time.
Consent isn't a checkbox, it's an ongoing conversation about whether everyone's into whatever happens to be happening at the moment. And unlike these apps, it actually has the potential to be sexy, fun, and deeply intimate. As Friedman says, "It's not legalistic. It's actually just about treating your partner as an equal human being"—a concept one would hope most sexually active people are pretty on board with.
Creatively stated objections abound on Twitter.
These apps promote the idea that bodily and sexual autonomy are waivable, corrupting conversations about consent.
“I’m all for fostering dialogue about consent—it’s a big part of my job—but these apps are fostering a wrong and dangerous conversation, one that posits consent as irrevocable once given, and applying to any and all sex acts someone might want to force on you, once you’ve consented to ‘sex’ as a concept,” says [Jaclyn] Friedman [, author of Yes Means Yes]. “Pushing that idea is more dangerous than not talking about consent at all.”
And, of course, it’s unimaginable that LegalFling-generated “contracts” would survive legal review, at least in the United States. For a contract to hold up, there must consideration, which amounts to an exchange of something of value; each party has to gain and lose something. It’s not clear that every (or any) contract formed via LegalFling would meet that criterion. A promise not to exceed the bounds of consent given is just a promise not to assault a partner; that’s already illegal. It’s hard to see how sex could fit into consideration unless you’re in Nevada. Any contract that is fundamentally illegal, as exchanging sex for things of value in most places, is invalid.
BDSM contracts, while usually explicitly unenforceable, at least address consideration.
These [BDSM] contracts import not only contract’s title but also its legal norms, as they are framed to mirror standard contracts and (at least superficially) conform to basic principles of contract law. For instance, they contain sections for both dom and sub to underscore that, despite the seeming one-sidedness of the relationship, each party receives benefits and suffers restrictions, affording the consideration necessary for legal contract formation.
Also absent: enforcement mechanisms. What’s a party’s recourse in the event of a breach of contract? No one can be legally compelled to perform or submit to a sex act they agreed to in advance should they withdraw consent. Any other effort to get a judicial assist on enforcement would run into the many (other) flaws of these contracts’ legal premise.
Even if LegalFling created an otherwise valid contract, it would be subject to invalidation on any number of grounds—principally, asymmetry. That could be asymmetry of power—or knowledge.
Central to contract law is its presumption that valid contracts are created between functionally equal parties. … [C]ontract law has developed a limited set of defenses to contract formation; these defenses in turn expose, and work to eliminate, the lingering anxiety that contracts can exploit inequality and thereby destroy the presumption of equality key to contract’s sustainability.
What does that look like?
[D]uress and nondisclosure ... permit courts to void transactions when the parties have asymmetrical will or knowledge at contracting, expressly declare some documents too “unfair” or one-sided to bear the name of contract. ... [U]nconscionability ... voids contracts because they have been created out of substantive inequality and cites “gross inequality of bargaining power” as a consideration.
Consent apps only have real legal utility for people who plan to commit, or are later accused of, assault. Offenders can coerce victims to “consent” via app to create a defense.
There’s also the possibility that someone might be coerced into giving consent on the apps (since there really is no way of proving otherwise) and that the documentation could then be misused as defense in sexual assault cases.
In the same way, that documentation could be used to protect assailants who secure consent then exceed its terms. Perpetrators who breach this app-generated contract will come out ahead: Even if enforceable, these contracts hardly impose consequences more serious than those applicable to sexual offenders under criminal and civil law already, and the existence of a “contract” would inevitably make prosecuting, or suing, offenders more difficult.
The essence of these contracts’ unconscionability is that they can only harm, never benefit, a potential victim of sexual assault.