- The Washington Times - Tuesday, May 24, 2016

A smartphone application that vocally records sexual consent is marketing itself to colleges and universities as a way to curb campus assaults, but higher education experts are skeptical about whether even such technology will improve the sexual climate on campus.

The developers of “YES to SEX” on Tuesday announced the launch of a new white-label platform, “YES to SEX EDU,” that will let colleges customize the app for specific challenges facing their campuses.

After a few informative slides about age of consent, definitions of consent and venereal disease, the app prompts users to audibly record their willingness to have sex. Users must also consent to what contraception will be used in the encounter and are given a safe word should one party wish to withdraw consent.

The recordings, as well as the date, time and location of the activity, are then encrypted and stored on a secured server, from which they can be retrieved by a court-endorsed order.

The app comes as colleges and universities try to adjudicate reports of sexual assault, with female accusers contending schools provide insufficient protection and redress, while accused male students say their due process rights are being violated by the lower burdens of proof in campus tribunals.

Many colleges have also adopted an “affirmative” standard of sexual consent, in which participants are required to continuously vocalize their willingness to engage in a sexual encounter. Critics contend that, by making it nearly impossible to prove consent was established, affirmative consent standards shift the burden of proof squarely on the shoulders of the accused.

E. Everett Bartlett, president of the Center for Prosecutor Integrity, said under such a strict standard of consent, the app will prove ineffective at placating sexual disputes on campus.

“The app is a well-intentioned but futile attempt to stop campus sexual assault,” Mr. Bartlett said in a statement. “Affirmative consent requires both persons to give consent for each ‘specific’ sexual activity. So even if a woman says ‘yes’ at the beginning, she can later claim that her agreement only applied to kissing and caressing, not the sex that came afterwards.”

Cynthia P. Garrett, advocacy chair and member of the board for Families Advocating for Campus Equality, said the app has some promise to document initial sexual consent, but won’t meet onerous campus regulations unless it “tracks each step of the sexual encounter and documents ongoing affirmative consent.”

She pointed to instances in which students accused of sexual assault have been found guilty despite obtaining written consent prior to the encounter.

Indeed, after a male student at Occidental College produced text messages showing his accuser agreeing to have sex with him, he was still found responsible for sexual assault in a campus trial and expelled from the school. Ruth Jones, the Title IX coordinator at Occidental College, declined to comment.

“The app also would need to somehow assess intoxication and other potentially incapacitating factors,” Ms. Garrett said.

Under YES to SEX’s new platform, colleges or campus groups, such as sororities and fraternities, can contract with the app’s developers to include personalized logos and information, such as how to report a sexual assault on campus or what the latest Title IX guidelines mandate.

Wendy Mandell-Geller, the app’s creator, said the program forces users to think about what constitutes consent and whether to use contraception, leading to more thoughtful sexual encounters and fewer disputes.

“It can be completed within 25 seconds, so it doesn’t spoil the mood,” Ms. Mandell-Geller said. “It’s just like a little thoughtful reminder — think about each other, make sure you’re both happy before you proceed, and remember to continue to ask for consent as you go along.

“Students can’t ask for consent if they don’t know how,” she said. “And so most likely, they won’t, until we give them that direction.”

The decision to record consent audibly, Ms. Mandell-Geller said, arose out of concern for the privacy of the app’s users. Other technological programs that facilitate sex, such as Tinder, have been used to blackmail and extort users, an increasingly popular crime termed “sextortion” by Brookings Institution Senior Fellow Benjamin Wittes.

Ms. Mandell-Geller said the audio recordings are not traceable on Internet searches.

“We take absolutely no information, no social media information, no emails, phone numbers — there’s no sign-up,” Ms. Mandell-Geller said. “We did this because people want to remain private. They don’t want their personal information to be out there, so we went ahead and created this exactly that way.”

Although the audio recordings provide users with immediate anonymity, the voices of participants and space-based information, such as the location and time of the activity, can still be used to corroborate or rebut accusations in trial-like settings.

Keith Blankenship, legal counsel for the app’s developers and owner of the intellectual property litigation firm Da Vinci’s Notebook LLC, said the recordings should be permissible as evidence in a trial.

Mr. Blankenship said the app was “designed to be admissible and authenticatable, and those are the two bars to the introduction of evidence in a trial or hearing.”

“Any evidence that is relevant is naturally admissible,” he said. “Anything that makes something more or less likely to be true is admissible. And certainly somebody saying ‘yes’ and consenting to sex certainly makes it less likely that this was sexual battery. It’s not going to win the case, but evidence just has to make it more or less likely.”

Brookings Institution Senior Nonresident Fellow Stuart Taylor Jr. said the app is an understandable development given the current sexual climate on campus. But he said the need for the app speaks volumes about the absurdity of the status quo.

“In an environment where the colleges are acting like lunatics — and the Obama administration, in forcing the colleges to punish people who didn’t do anything wrong, is acting like lunatics — this is one way that people could try to protect themselves,” he said. “But it certainly shouldn’t be necessary.”

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