Karen meets Jeff at a party and he instantly seems like a kindred spirit.
She keeps waiting to hear a telltale reference to an absent wife, girlfriend or partner but there’s no mention of a significant other.
Jeff looks at her and acknowledges something special is happening; by the end of the night he’s climbing the stairs to the fifth-floor walkup Karen shares with roommates.
Once inside Karen’s room, Jeff grabs his phone and taps a few times.
Karen’s phone beeps with an incoming text. She’s received a WhatsApp message: “Jeff is requesting sexual consent.” There’s a heart-shaped icon for yes and an X for no.
Sex & Love Around the World
Karen can tap the heart and appreciate the fact that Jeff cares about consent. Or she can tap the X and wonder what kind of guy has a sex app on his phone.
This hypothetical situation isn’t some future shock “Black Mirror” fiction. A Dutch blockchain company is developing an app called LegalFling that creates sex contracts between consenting adults.
Since users are flocking to apps like Tinder and Grindr to navigate the dating scene, LegalFling’s creators reason, how farfetched is it to outsource consent to an app?
Among the many issues raised by #MeToo, the topic of consent is particularly fraught. A reckoning for serial predators in Hollywood has turned into a nuanced reappraisal of sexual ethics, female desire and agency. #MeToo is part of an ongoing wave of change worldwide. Over the past five years, activists in Sweden, Germany and India have successfully campaigned for consent-based reforms to sexual assault laws in the wake of shocking incidents.
On March 20, the Swedish government advanced a bill that updates its definition of rape, criminalizing sex without clearly expressed consent. The current law requires prosecutors to prove a victim was subjected to violence or threats. If the proposal is approved by the legislature, it will go into effect on July 1.
Sweden began crafting changes to its criminal code in 2014, after feminist organizations created a hashtag campaign, #samtycke (consent) to protest a series of acquittals in prominent sexual assault cases, including the gang rape of a 15-year-old girl in a Stockholm suburb.
Germany added consent to its sex offense statute and outlawed groping two years ago, in response to a campaign called, “Nein Heisst Nein,” or “No Means No,” launched after hundreds of women were assaulted during New Year’s Eve celebrations in Cologne and other cities. The fatal gang rape of a medical student in India led to demonstrations in major cities nationwide and a raft of legal reforms in 2013.
“It’s like somebody took the snow globe of people’s sexuality and their understanding of sexuality and sexual consent and sexual relationships and they shook it up until all the little flakes are falling,” said Meredith Chivers, a sex researcher and associate professor of psychology at Queen’s University in Canada. “And it’s going to take a while for all of that to settle and it’s never going to settle in the same way and that’s good because there’s a lot of people who’ve been hurt and we need to fix this.”
Where does #MeToo fit in?
#MeToo differs from the feminist movements overseas because it has yet to yield substantial changes to criminal law in the United States (though Democrats in Washington state and Nebraska proposed new legislation in January to strengthen sex crime statutes).
The currently stalled Nebraska bill is rooted in a principle called affirmative consent, which goes beyond “no means no” to define consent as “a knowing and voluntary agreement, freely given, to engage in sexual contact or sexual penetration.” Affirmative consent is also called “yes means yes.”
Antioch College in Ohio pioneered affirmative consent in 1991 to combat date rape on campus. The small school issued guidelines advising students to obtain consent during each stage of a sexual interaction. Some states, including New York and California, have passed laws mandating yes means yes standards on college campuses in response to studies reporting the prevalence of sexual assault in student populations.
The consent conversation received additional fuel from “Cat Person,” a short story published in December about a soulless liaison, and a January Babe.net article detailing a woman’s ill-fated date with comedian Aziz Ansari.
The Ansari story captures the frequently messy reality of sexual encounters. The article was divisive because it delved into a gray area: The accuser said she used “verbal and nonverbal cues to indicate how uncomfortable and distressed she was,” but to many who read the piece, the absence of a plainly stated “no” meant consent was implied.
People are often reluctant to engage in candid dialogue about their sexual expectations because of insecurity and fear of rejection, said Richard Mattson, an associate professor of psychology at Binghamton University.
Sociologists use the term “sexual script” to describe the way people interact during a romantic encounter. Movies, television, song lyrics and pornography shape sexual scripts and even the most enlightened millennial may have a warped sense of how a date should play out based on timeworn depictions of determined men winning over indecisive women, said Mattson.
“Aziz Ansari is a self-proclaimed feminist at the explicit level but is just as exposed to various media influences and lack of education and is just as prone to making errors,” said Mattson, who co-authored a study in the Journal of Interpersonal Violence that examined how college men respond to verbal and nonverbal messages of consent and refusal. “It’s a related and potentially even broader problem.”
‘If you are unsure, then refrain’
Last December, Swedish Prime Minister Stefan Löfven announced a proposal to update the country’s sexual offense laws based on the principle of affirmative consent.
“It should be obvious,” Löfven said during a news conference. “Sex should be voluntary. If it is not voluntary, then it is illegal. … If you are unsure, then refrain.”
The proposal made news around the globe but the response in the German media was notably virulent. German columnists condemned the consent law as an Orwellian effort to micromanage intimacy. An editorial in Die Welt falsely claimed Swedes needed to get written permission for sex.
The day after the Die Welt editorial was published, the Swedish Embassy in Berlin issued a statement: “Contrary to many media reports, it is not necessary to obtain written consent.”
Madeleine Leijonhufvud, a Stockholm University professor emeritus of criminal justice, said the arguments against the reform, from critics in Sweden, Germany and elsewhere, don’t make sense.
“In no other field of law have I heard so many illogical arguments and fear,” said Leijonhufvud.
Affirmative consent should be the norm, Leijonhufvud said, because scientific studies have revealed that many rape victims experience a temporary state of paralysis called tonic immobility. It’s an adaptive response to a threatening situation, rendering a person passive and speechless. A lack of resistance is not necessarily consent, Leijonhufvud said, and an individual’s behavior leading up to an encounter should not negate their right to withdraw consent.
“The important thing is that the law looks at the actual act, not what a woman might have done before the act, whether she had danced in a provocative way or how she was dressed,” said Leijonhufvud. “The current norm is a woman has to behave so that she does not provoke any sexual abuse.”
LegalFling mentions the Swedish law on its website, declaring that its sex contracts are legally binding agreements. Leijonhufvud said if a person accused of rape tries to use LegalFling as a defense, it won’t hold up in court because women have the right to withdraw consent at any point during an encounter.
“No one can say, ‘Well, she consented beforehand with this app,’” said Leijonhufvud. “It has to be consent during the act.”
No means no
Germany had a #MeToo-like reckoning two years ago, after hundreds of New Year’s Eve assaults on women were reported. Because the suspects included asylum seekers from the Middle East and North Africa, the attacks fueled anti-immigrant protests. (Germany has taken in more refugees than any other country in Europe.)
Activist Kristina Lunz helped launch a hashtag campaign #ausnahmslos (“without any exceptions”), targeting misogyny and racism simultaneously.
“All these people in Germany who for many years did not even care a tiny little bit about women’s rights, they started this racist discussion around the old colonized narrative of brown men raping white women when in fact one of the real problems of that night was that our laws did not protect any victims of sexualized violence,” said Lunz, head of the German section of the Centre for Feminist Foreign Policy.
At the time, groping was not a crime and rape prosecutions required proof the victim had physically resisted the attacker. Verbal refusal was often not sufficient to get a conviction, according to an analysis of 107 sexual assault cases published by BFF, a women’s rights group, in 2014.
A rape case involving a model named Gina-Lisa Lohfink stirred up controversy because she was captured on video telling a man to stop but ultimately she was put on trial for filing a false claim. The court fined her, ruling that her objection was to being filmed, not to having sex. The No Means No campaign was galvanized by the Lohfink case and the New Year’s Eve attacks.
Within months, Germany changed its sexual assault statutes. The provisions, approved by parliament in July 2016, criminalized groping and updated the definition of rape to include sexual contact with a person who has expressed refusal.
“This was a massive milestone for women’s rights and sexual self-determination in Germany and it will give millions of girls growing up the understanding and the confidence that their no actually means no,” said Lunz. “They have all the right in the world to say no to something that they do not want whereas before, when I grew up, I was told once I marry a man I have to give my body and my sexuality to him.”
A horrific rape
In December 2012, a young woman died after being gang raped on a bus in Delhi. The incident triggered street protests and led to the creation of a government committee to recommend legislative reforms.
“Huge numbers of young and old, men and women, started asking for better in terms of gender equality and sexual violence,” said Karuna Nundy, a Supreme Court attorney who helped write the legislation.
In March 2013, new laws were passed that criminalized stalking, voyeurism, groping and assault with intent to disrobe. Rape was redefined as sex without unequivocal consent.
The reforms have yielded mixed results in courtrooms, said Nundy.
“We’ve had some very disappointing judgments,” said Nundy. “In one case, the victim was judged because she wasn’t, according to some witnesses, upset enough. There’s another judgment that came from the high court which said that because this woman was drinking and spent time with a lot of men and supposedly smoked weed, they’re presuming that her consent was given.”
The 2013 reforms did not outlaw spousal rape. Nundy said she sees marital rape as a consent issue.
Nundy has filed a petition in court arguing that marital rape is unconstitutional. Currently, husbands are immune from prosecution for nonconsensual sex with their wives, unless the couple is separated.
Spousal rape remains legal in in 112 nations worldwide, according to the World Bank. A sizable number of countries, however, have updated their laws to protect married women over the past two decades. The list includes Malaysia, Rwanda, Zimbabwe, Papua New Guinea, Bhutan and Serbia. Enforcement remains a challenge.
“What the US needs to do and India needs to do and every single government in the world needs to do is start taking down attitudes and entitlements that lead to violence, discrimination and crime,” said Nundy. “Justice after the fact is only after the damage is done.”