So apparently there’s now an app to agree not to rape your partner. It’s called ‘Sasie’ and according to reports, ‘the app is meant to be a legally binding contract between two adults who are agreeing to have a sexual encounter’. As far as I can tell, you both type your names and e-mail addresses in, take a picture of yourselves, and tap to sign this contract. At what stage of proceedings this should be done is far from clear, but I suppose there’s a point in the evening where that could be part of an amusing flirtation between young people just getting to know each other and wondering whether they were prepared to go the whole way.
For those of us who can still remember when we thought that pre-nuptial agreements were pretty unromantic when we first started hearing about them, this will confirm that all the myths we were sold about love and making it are now truly dead. ‘Yeah, sure, I like you too, but hey, maybe we’d better just cement things beforehand, and click the agreement that says you’re not going to commit the worst sex-crime with me. Would that be cool?’
But apart from what it’s doing to us as people, could we just reflect a bit upon the law that is supposedly being invoked here, and the fact that, this side of the pond anyway, this app is worse than worthless in every respect.
I suppose it may just about be the case that you could consider sex a contract. There’s offer, acceptance, and, ahem, consideration. Traditionally, there’s very unlikely to be ‘intention to create legal relations’, which is usually necessary to establish a legally binding contract, but maybe things have moved on since those days, and perhaps young people today feel a need to put things on a more reliable footing than has hitherto been the case.
But rape, ladies and gentlemen of the jury, in case you weren’t aware, is a crime, not a breach of contract. Violating the bodily integrity of someone who does not consent to sex with you is a shocking and serious offence and no amount of contract law can get you off the hook. You certainly have breached an agreement – the universal agreement we all extend to each other not to behave with violence and criminality – but that is the least of your problems. So whether or not Sasie ‘creates a legally binding contract’, it certainly is not in contract law that the remedy for the breach is to be found. Contract law is civil law, and its remedy, in general, is damages – ie money – for the wrongs caused by the breach. The usual measure is the amount of money necessary to put the parties in the same position as if the contract had been properly carried out. It is quite hard to see what that would mean. The same position as if the consent had not been withdrawn, or the same position as if the withdrawal of consent had been respected? You see the difficulty? (Don’t worry about the question of how you put a value on pain, suffering and other general intangibles – the civil law does this all the time).
No, rape is a crime, and, at least since the Sexual Offences Act 2003, consent is ongoing, and may be withdrawn at any moment during the act. That means that if the – shall we say ‘passive’? – party changes their mind, doesn’t like it, or wants to stop, at any moment, then the ‘active’ party has to stop. At once.
So where does Sasie help us out here? Both parties have just produced what they intend to be solid legal evidence that they have consented to have sex. The rapist, upon being complained of, will surely point to Sasie as evidence that consent was in place, will he not? Indeed, he may well use it to bolster a defence that he had a reasonable belief that consent was still in place – a sort of reverse safe word – ‘Oh yes, your honour, she was saying no, but you see, she’d clicked this app, you see, so naturally I thought that she was only kidding – you know saying it to get me excited. We play games like that, you see, maybe your honour hasn’t ever done so, but…’
And once established, how is consent to be withdrawn, using the Sasie app? Would the victim have to fumble for their phone to indicate that consent had been withdrawn at 11:15, and then snap a picture to show that it was still ongoing at 11:16? Or could it perhaps be set up so that unless the potential victim sends a signal that consent is still ongoing every five seconds (or whatever) then it is presumed withdrawn. Quite apart from the very tedious imposition on consenting and loving couples, in what predicament does it leave the man accused of rape if it turns out that his partner didn’t send such a consenting signal? Too ludicrous.
Now, to be fair to Sasie’s creators, it’s far from clear to this particular writer what their actual legal intentions are. Its promotional material says ‘It provides relief to Title IX coordinators, sexual assault adjudicators, as well as being an alternative recourse for U.S. college students; victimized by sexual assault, and reluctant to use their school’s channels for reporting.’ If you are wondering what that semicolon is doing there, and what ‘an alternative recourse’ might mean, you sure won’t have much luck reading the rest of the spiel. ‘SaSie is an alternative solution for students who would rather take matters of consent and agency into their own hands, yet still be in compliance with their school’s ethos and policies regarding affirmative consent.’ What on earth does this double-speak mean, and how on earth does SaSie actually address it? An alternative solution to what? The police? A civil action in tort? What is the alternative to having matters of consent and agency in one’s own hands? Into whose hands may they otherwise be put?
It is, of course, correct that consent needs to be fully understood by all young people engaging in sexual relations, (though is this what is meant by ‘Considering the significant legal and real-world risk students are assuming, by having sex at all, while enrolled in college, the SaSie consent app sends a strong message that consent is not a game’? I hope not) and I suppose anything which makes it more vivid and concrete might be of some value, but which horny young man would not happily click on SaSie’s signing icon and think that a night of passion was certainly his. Is that a good thing?