By Kristen Walsh

Affirmative consent is the concept of giving verbal permission clearly and often during intimate encounters. For years, colleges across the country have been made fun of for using this policy. Recently, apps have been developed to take aim in assisting in the awkwardness of this type of consent. Apps like LegalFling and We-Consent allow partners to give explicit sexual consent with an agreement or “live contract” that users can continuously interact with and update.

LegalFling was developed to approach consent like a legal contract. The app lets users give explicit sexual consent via an agreement, or “live contract,” that may continuously be updated and is also interactive and can be updated. The app allows partners to agree upon things such as condom use, bondage, dirty talk, and sexting. The app allows users to set their boundaries before an encounter, adjust, and share with a potential partner. It attempts to open the conversation between partners to make the sexual dos and don’ts explicit in a fun and clear way.

We-Consent was introduced in 2015 to help students on college campuses with the implementation of affirmative consent rules. The purpose of the app is to get people to start talking to one another about what they are going to do with one another. We-Consent records a short video of two individuals stating their affirmative consent, and uses facial recognition technology.

These apps may prove to be incredibly tricky. If introduced in court, Andrew D. Cherkasky, a former special victims’ prosecutor, told the New York Times he believes the agreements may actually hold up. He believes that what Legal Fling offers is not technically a contract but documentations of intent, which are legally viable. If they are to be used as intent, the documents may only be used to show what the person’s intent or desire was at the time the button was pressed.

Individuals who use the app then need to actually plan out their use of the app. Unless planned, it is very difficult to determine if the consent provided in the app was actually what the person was intending. The app developers are attempting to bring a fun approach to a sometimes-awkward conversation; however, it is important that the limits of one’s consent remain clear.

Many difficulties are presented with these apps because people change their minds. While these apps may document consent, they do not account for changing emotions. An app user may originally document that they consent in the app and then decide to change it and forget to document this change in the app. In some situations, it may not be possible to document their changed feelings in the app or it may simply be too late. While the app allows a user to inform their partner if they feel uncomfortable with the situation, it is incredibly wrong to suggest that someone may not change their mind and alter what they had originally documented in the app.

These apps serve a great purpose with the recent #TimesUp and #MeToo movements. They open the conversation about sexual assault and rape. In addition, they put a spotlight on confusing situations that may have initially been consensual but a person went on to later regret. These are incredibly difficult situations to understand. Thus, these apps may be seen as a positive change in protecting individuals and informing consent but efforts still need to be made to educate people and focus on the problem itself. It is important to figure out why the issue exists and what can be done to address it.

The development of affirmative consent apps can help to open the consent conversation but, they are not a solution. While these conversations can be both awkward and confusing, they are incredibly important. These apps will not solve all the issues that relate to consent but they are a huge step forward in addressing a problem that is in need of solving.

Student Bio: Kristen Walsh is a staff member of the Journal of High Technology. She is currently a 2L at Suffolk University Law School and holds a B.A. in Public Relations with minors in Legal Studies and Political Science from Roger Williams University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.