With just days left before California Gov. Jerry Brown signs (or vetoes) the state’s pioneering “yes means yes” sexual consent bill for colleges (SB 967), California students may be wondering how they can possibly prove after the fact that their sexual partners gave consent.
Enter Sandton Technologies, the developers of Good2Go (not to be confused with Washington state’s toll-pass program), a mobile application for Android and iOS platforms. Its Google Play page promises that it will make sure both of you give “affirmative consent” for each sexual encounter, and confirm that you can consent:
Good2Go App includes a sobriety questionnaire so that both parties know if affirmative consent can be granted. If the partner who is being asked if he or she is “Good2Go?” is too incapacitated, consent cannot be granted.
Reason‘s Robby Soave, a former College Fix colleague who earlier this year called for the creation of such a consent app, is singing the praises of Good2Go after playing with it. Sorry, Robby, but I’m going to burst your bubble:
This app is worse than nothing if you want to protect yourself from false allegations or miscommunications in the heat of the moment. Based on its promises, it could conceivably violate federal law as well.
One-Time Consent That’s Not ‘Legally Binding’
Let’s consider how the California bill is structured. It defines “affirmative consent” as
affirmative, conscious, and voluntary agreement to engage in sexual activity. … Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. [emphasis added]
Since Good2Go uses traditional gender stereotypes of men initiating and women responding, I will too.
Good2Go asks for consent once – in theory, before a sexual encounter has started. Its FAQ page is careful to avoid legal language, telling users the app gives partners “a level of mutual understanding that is well beyond what often exists today” but is not “legally binding”:
No, the app facilitates communication, reduces misunderstandings, and indicates a level of sobriety. It encourages people to discuss what they want to do before they do it, but it is not a contract.
Signing off on the app does nothing to legally preempt a partner who changes her mind about consent from alleging she was assaulted.
This was the situation described by a student at Columbia University who claimed she was anally raped by a partner after starting a consensual sexual encounter. (For more on that case, which drew national attention, read our coverage.)
Neither can affirmative consent apply if “the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity” because the accuser was “incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.”
That’s a burden of proof that lies with the accused. Good2Go, by contrast, assigns the consent decision to the accuser.
And the app’s alcohol options are far from objective: “Sober,” “Mildly Intoxicated,” “Intoxicated but Good2Go” (?) and “Pretty Wasted.” Choosing “Pretty Wasted” is the only option that halts the consent process completely.
Considering that the app depends on each partner evaluating their own sobriety, this mechanism is far from reassuring as to judging a person’s ability to consent under the California bill.
This is the crux of the matter in a lawsuit against Occidental College in California for railroading a male student accused of rape. Court records show that his accuser went to great lengths to have sex with him, backed by her text messages, but because she couldn’t remember the encounter after the fact and a professor pressured her to file a complaint, the school contends she couldn’t legally consent – and that her partner should have known.
If public service announcements have taught us anything, it’s that “buzzed driving is drunk driving.” A person may get into a car and consider herself sober enough to safely drive, or get into a bed, click through an app and consider herself sober enough to have sex, and only after the fact decide that she wasn’t – perhaps after talking to friends or a Title IX official.
‘Good2Go’ to Accused, ‘Incapacitated’ to Administrator
Meanwhile, after the initiator approves the partner’s self-described state of intoxication on the app, the initiator has created a digital trail that identifies him as having had sex with a person who may be just shy of “Pretty Wasted,” whatever the hell that means.
This amounts to a confession of sexual assault, should the partner file a complaint and campus administrators (or a prosecutor) decide that the accuser who was self-described “Mildly” or “Good2Go” intoxicated was actually “Pretty Wasted” and unable to legally consent.
Remember – it’s meaningless that the partner herself indicated some appropriate level of intoxication on Good2Go. The bill clearly puts the onus on the initiator to decide if his partner is “incapacitated.” (And we know that students have different definitions of consent than the nation’s leading sexual-assault tutorial provider.)
Anyone who recalls how Internet companies have released reams of personal data to law enforcement on flimsy pretenses should be worried by this FAQ:
The details of any interaction stored on the Good2Go servers can only be released by the operators of Good2Go, and this will only be done when they determine that a proper request has been made by appropriate authorities, such as law enforcement or a university as part of an investigation. [emphasis added]
Now ask if Good2Go’s sample scenario would have prevented the Occidental situation:
If she answers “Sober,” “Mildly Intoxicated,” or “Intoxicated but Good2Go” (anything other than “Pretty Wasted”), she will be asked to enter her phone number and the app will verify her identity. This process can bring clarity to the situation and help reduce the possibility of miscommunication. If a man does not receive a positive response, he should not start an encounter. [emphasis added]
This is the equivalent of a newspaper horoscope that reads in fine print at the bottom, “For entertainment purposes only.” The difference is the horoscope won’t get you expelled.
Unfair and Deceptive Trade Practices
App design is a hot issue at the Federal Trade Commission, which has started cracking down on companies that promise to keep user data private and secure but have “systemic” problems doing so.
The FTC claims that those baseless promises violate Section 5 of the FTC Act, which gives the agency the power to punish “unfair and deceptive” trade practices.
Good2Go doesn’t explain how it protects user data on its servers, but should hackers decide to have some fun with its database and expose a detailed list of who’s having sex on campus with whom and how often, Good2Go could find itself in trouble with the feds. Or California’s attorney general – Kamala Harris is known as a ball-buster in the app industry.
Did You Even Read the Bill?
What’s most troubling to me is that Good2Go’s maker is a strong backer of the “yes means yes” bill.
It promoted a Wednesday rally in Los Angeles in favor of the bill (supporters sound antsy that Gov. Brown might not sign it). And just like ride-sharing services, it’s trying to recruit “ambassadors” on campus to spread the gospel of checklist-aided sex.
Good2Go is also trying to rally libertarian support by citing Robby Soave’s credulous article from June that thinks a mobile app can solve the legal and political rigamarole that is “affirmative consent.” It’s a leading temptation of the smartphone age: We can solve anything with a mobile app!
But it’s not at all clear to me that Sandton Technologies actually read the bill as it was designing the app:
- One-time consent mechanism
- Laughably vague series of inebriation states
- Consenting partner judges sobriety
Good2Go may slow down sex partners from lunging at each other – after all, they both have to log in to record consent and drunkishness – but it is beyond useless for California college students who find themselves in a disciplinary bind.
Students who have the slightest doubt about the competence and fairness of their campus administrators should avoid this app like … well, like Good2Go’s terms of service avoid liability for potentially ruining their lives.
Greg Piper is an assistant editor at The College Fix. (@GregPiper)
IMAGES: Good2Go screenshots