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Terms, Conditions and iPhone Apps For Consent To Sex…?

Trigger Warning: This Article mentions and discusses sexual assault

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Smart Phone apps recording positive consent to sexual intercourse would do more harm to victims of sexual assault.

In March 2021, NSW Police Commissioner Mick Fuller proposed that an app which records positive consent to sexual intercourse could be a possible solution to address growing rates of sexual assault in Australia. This idea was based on the role technology has come to play in our everyday lives, both through dating apps like Tinder, Hinge and Bumble, as well as measures for COVID-tracing. Such initiatives have been undertaken in other countries like Denmark through the iConsent App, which allows its users to give consent for sexual intercourse in a twenty-four-hour period.

However, it is arguable that swiping for consent to sex is not the solution we need to address the epidemic.

For example, it could be said that an app does not necessarily capture the realities of sexual activity – for example, sex may include multiple different acts and consent to one kind of activity does not necessarily equate to consent to another – consent is constant and ongoing throughout. Similarly, a person has the right to withdraw their consent at any time. Neither of these circumstances are necessarily able to be addressed in an app – it is not appropriate to view sexual activity as a contract.

Moreover, even if the app is intended to ensure that a person is able to consent to sexual intercourse, it may still be taken advantage of by people with ill intent. For example, if an app needed biometric facial recognition, or a thumbprint, to give consent, these things could arguably be taken from the victim without their knowledge or awareness if they were substantially impacted by drugs or alcohol. Alternatively, a victim could feel pressured or coerced by the perpetrator to agree on the app because they don’t feel safe. A consent app could therefore operate to discredit the victim in the courtroom if they wanted to seek charges against the perpetrator. As it currently stands, the issue of establishing a lack of consent in sexual assault cases without physical evidence is difficult, often coming down to the word of the victim against the word of the perpetrator.

Simply put, the App does not stop victims from experiencing the sexual assault or rape – it creates more barriers to securing convictions against perpetrators and achieving justice for victims of sexual violence.

The Australian Institute of Health and Welfare reported last year than females in their late teens were more likely than any other Australian to be a victim of sexual assault, with men the same age, most likely to be recorded as perpetrators. In 2016, it was estimated that perpetrators of sexual assault were four times as likely to be someone known to the victim than a stranger.

If young people are most at risk of being victims of sexual assault, and this assault is more likely to be by the hands of someone the victim knows, then attention needs to be drawn to understanding the meaning of consent itself. Triple J Hack recently did an episode that examined the disclosure of men who have come to realise that they had previously perpetrated sexual assault, investigating the role of toxic masculinity, portrayal of sex and consent in film and television, and lack of consent education in schools, that may have contributed to their actions.

Conversation and education therefore need to be directed towards consent and what it entails. For example, some may not be aware that consent requires active participation from those involved, that lying about having an STI or pretending to use a condom actually vitiates consent, and recording a person during sex without their consent is illegal. Last month, Victorian Government has taken this approach to addressing sexual violence by mandating consent education in government schools, calling for other states and territories to follow their lead.

But bonsent education can (and should!) happen beyond the classroom – it is important to start calling out problematic attitudes held by people we personally know to change the narrative of consent in society.

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