Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

WHAT’S WRONG WITH THE NEW CALIFORNIA ANTI-CAMPUS SEX CRIMES AND ACCOMPANYING APP?

It really is quite a comfort, isn’t it?

As the article says, “Want to be sure you’re not raping someone? There’s an app for that.”

As discussed in my last blog, the app to which I refer is the upbeat-named “Good2Go”.

Although I do not seem to be able to download it onto my IPhone, it is said to be a free “consent” mobile phone app that “targets college-age adults”.

Maybe that’s why it won’t download for me. But I digress.

Good2Go president Lee Ann Allman told Slate magazine she was inspired to create the app after talking with her college-aged kids about sexual assault on campuses in America, and says on her LinkedIn page she hopes it will “help alleviate the culture of confusion, fear, and abuse on campus”.

The app emerges from the darkness as California adopts the new “yes means yes” sexual assault bill we also discussed on my last blog.

The app emerges from the darkness as California adopts the new “yes means yes” sexual assault bill we also discussed on my last blog.

So…problem of campus sex crimes solved?

Hardly.

Attorney Sam’s Take On The Easy Answer Approach (Once Again) Part One

In a way, it may be the perfect app for a generation in which communication between two people verbally and live is more and more infrequent. All communications are actually done through the app although both potential partners are presumptively in the same room.

Would-be-lover #1 initiates the app that he or she would like to have sex now. Would-be-lover#2 then is handed the device and has to answer the inquiry “Are we Good2Go?”

Hence the clever title.

WBL#2 now gets to choose from a few pre-programed responses. One such response is “No, thanks”. This triggers the advice “Remember! No means No! Only Yes means Yes, BUT can be changed to NO at anytime!” I am a wee bit confused as to why this mini-lecture is directed at the potential lover who is already saying “No”, but, then, I am not an app programmer.

Less negative responses bring other results from the app. “Yes, but…we need to talk” or “I’m Good2Go” triggers a test as to sobriety. WBL#2 gets to choose from “Sober”, “mildly Intoxicated”, “Intoxicated but Good2Go” or “Pretty Wasted”. The last choice, of course, means that WBL#2 cannot consent any more than a little child can. As for the other choices, the app apparently double checks phone numbers and may even do a sobriety check of its own somehow.

Apparently, nobody cares if WBL#1 is stoned, wasted or incompetent. So long as he or she is able to use a Smart Phone, he or she is capable is consenting.

The developers hasten to add that the app is not legally binding. It is just an aid to help the two potential lovers communicate…which they clearly cannot do via the spoken word.

There are, in my opinion, a variety of problems with this app as there are with California’s approach in the first place.

One way in which this app is likely to help the problem is that, if used, it may reduce the number of sexual relations (voluntary and forced) in total. By the time the potential lovers satisfy the app that they are willing and sober enough, the initial desire may be long gone. They might even find that it is actually more fun to be playing with the app than the actual sex act itself.

More seriously, however, while the developers stress that this is not meant to be a legally binding contract, it clearly encourages folks to use it and take it seriously.

Any such reliance on the app is dangerous.

First of all, at best, it’s recordings are meaningless. Consent can be withdrawn at any time. So, assuming someone consents soberly initially and then changes his or her mind. We are left with the same problem. Of course, since we do not care about the sobriety of WBL#1, that person could be wasted and somehow convinced that he or she has a binding contract obligating WBL#2 to have sex.

Secondly, while the developers may desire that the data in the app be inadmissible in a court of law…or college tribunal…that is not really their choice to make. At least in court, there are Rules of Evidence that are involved and actual judges make those determination. The fact is that there are a number of arguments I can think of that would make the data admissible.

Third, it does not really allow for the possibility that one of the potential lovers is not being particularly honest. People may falsify the timing as well as identity of who is actually entering the information. A would-be rapist might, for example, consent for his drunk or unaware soon-to-be victim. Since we do not seem to care much about consent and sobriety of the person initiating the cyber-session, what if that person is being manipulated by WBL#2 who is plenty sober?

There is no recognition of nuances. What if WBL#2 agrees to everything short of intercourse? Clearly, consent to one act does not mean consent to another. How does the app help then?

Also, there are other situations which can make someone incapacitated. What if WBL#2 is emotionally unstable? What if the person is on a drug other than alcohol? What if they are slipped ruffies and so, barely conscious, they do whatever WBL#1 tells them to do?
I will remind you that rape is a crime of violence. It is usually part of an act of trying to control another person. If that is the dynamic here, then it is quite likely that WBL#2 will answer whatever WBL#1 tells them to. In fact, WBL#1 might well have downloaded the problem precisely so that he/she can cover his/her tracks.

Lastly, for now, is the question of human nature. Let’s assume both WBL#1 and WBL#2 have been drinking. First of all, because he/she initiated the whole subject, we do not really care if WBL#1 is drunk and so not able to consent or otherwise use brainwaves responsibly. If WBL#2 is drunk as well, do we really expect that person, while drunk, to determine where on the scale of inebriation they are? Further, even if they know they are drunk, yet physically interested in sexual relations, do we really expect WBL#2 to respond, “Pretty Wasted?”

In short, this app, as is the case with most quick and easy “solutions” to complicated important issues, is not even close to a solution. The most one can say for it is that it keeps the topic of consent alive and visible. Not that that is of small importance.

The bottom line here is that I can see the app’s data being used as evidence of prior statements …usually when trial testimony is different in meaning. The way the app seems to be set up, the roles are clear. WBL#1 is the presumptive future defendant and WBL#2 is the presumptive complainant against whom any evidence of prior consent will be used by the defense to discredit.

“Ok, Sam, you don’t like the app. We get it. But what could possibly be your problem with California’s new approach?”

Let’s discuss that in my next blog.

For the original story upon which this blog is based, please go to http://www.theguardian.com/technology/shortcuts/2014/sep/30/consent-app-good2go-bad

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