By Jennifer Smola and Maeve WalshThe Columbus Dispatch, OhioWWR Article Summary (tl;dr) As Jennifer Smola and Maeve Walsh report, “Sexual assault prevention advocates said they are seeing more instances of young people being advised to get “proof” of consent, but warn that formal documentation in writing or video doesn’t capture how consent really works.”COLUMBUS, Ohio
Some attorneys say it can be the only way for people to defend themselves. Advocates say it falls woefully short.
In a #MeToo world, is written and recorded sexual consent the new norm?
Two Ohio State University football players, Amir I. Riep, 21, and Jahsen L. Wint, 21, were arrested Feb. 11 after being accused of raping and kidnapping a 19-year-old woman. The next day, head coach Ryan Day announced he had dismissed the two from the team.
Columbus police said in an affidavit that Riep told the victim to say the encounter was consensual on a video recording. That recording has been recovered, police said.
The idea of seeking “proof” of consent is concerning to sexual violence researchers and prevention advocates for a number of reasons. But some criminal defense attorneys say they encourage seeking consent in some sort of documented form, whether in writing or in an audio or video recording.
Brad Koffel, a Columbus criminal defense attorney in private practice for more than 25 years and managing partner of Koffel Brininger Nesbitt, advises his clients to obtain some sort of written consent for sexual acts, even if it’s just a text message, and added that any sort of audio or video recording indicating consent is good, too.
“I think the best practice for young men is to ask for consent in writing,” he said. “And if they don’t, in this climate, then they’re going to suffer some consequences.”
A female attorney for Hollywood producer Harvey Weinstein, who is standing trial for rape and sexual assault, made similar suggestions earlier this month.
“If I was a man in today’s world, before I was engaging in sexual behavior with any woman today, I would ask them to sign a consent form,” Weinstein’s attorney Donna Rotunno said on The Daily, a New York Times podcast.
Although some attorneys view documented consent as a form of protection, Columbus criminal defense attorney Dan Sabol of Sabol Mallory said he would feel concerned if a client obtained written or recorded consent from a sexual partner.
“That’d be a red flag,” he said. “It might look as though they’re trying to cover their tracks.”
Proof of consent might help someone who is falsely accused, Sabol said. But if there is compelling evidence that a sexual act was not consensual, he said the documentation of consent from a partner could increase the appearance of guilt in a suspect.
“Just because someone says it’s consensual on video doesn’t make it so,” he said.
Brandon Shroy, a Columbus criminal defense attorney, said a jury is ultimately responsible for determining the validity of a consent video.
“It’s something that defense attorneys, someone who is defending them, would love to see, but it’s something a group of jurors would choose to believe or disbelieve,” he said.
Sexual assault prevention advocates said they are seeing more instances of young people being advised to get “proof” of consent, but warn that formal documentation in writing or video doesn’t capture how consent really works.
“It should be taken as a red flag that a person would have enough doubts about whether or not consent was established to … request this type of agreement before or after an encounter,” said Laura Palumbo, communications director for the National Sexual Violence Resource Center.
“Because in reality, one of the most important things for people to know about consent is that if you have any doubts, or not sure that you’re on the same page with your partner, then the interaction should not move forward with your partner.”
Emily Gemar, campus advocacy coordinator for OhioHealth’s Sexual Assault Response Network of Central Ohio, said consent can legally be revoked at any time, so written or recorded documentation of consent is in no way representative of an entire sexual encounter.
“If someone consents on a recording one time, it doesn’t simply (mean) blanket consent for everything after that,” she said.
Experts said such recommendations for consent videos or texts aren’t surprising, given the current climate and attention on sexual assaults.
“With the #MeToo Movement and a lot of people in powerful positions having harmed many survivors, I’m sure that there is a move to protect themselves by trying to record consent somehow,” Gemar said.
“On the one hand, people know that consent is important, but on the other hand, of course, these types of ways of proving consent are concerning,” said Zoe Peterson, director of the Sexual Assault Research Initiative at Indiana University’s Kinsey Institute, who studies sexual consent, sexual assault, sexual coercion and unwanted sex.
Gemar said she uses the ‘FRIES’ model to outline the requirements of consent: freely given, reversible, informed, enthusiastic, specific.
“A good consensual act or series of events should be active communication the whole time and checking in with their partner,” she said. “They should consent and enthusiastically agree the whole time.”
Consent can “only exist when there’s equal power and there’s no pressure” between two people, Gemar said. Obtaining documented consent from a partner may limit the power of a partner to communicate his or her wants and needs during a sexual act, she said.
“Consent is a free choice,” Gemar said. “It needs to be something that is explicit and ongoing.”
But Koffel said documenting consent can be the only defense for a person if falsely accused of sexual assault.
“The only way that young men have to defend themselves after the fact of what they thought was a consensual sexual act is to obtain some consent in writing before the fact, even if it is in a text,” he said. “Otherwise, they are stuck with their accuser’s version of events.”
That approach, though, can perpetuate “victim-blaming myths,” Palumbo said.
“They’re reiterating this idea that people who report and come forward of having been sexually assaulted are falsely reporting,” she said. “(But) what we know from the research is false reports of sexual assaults are very rare. Sexual assault is the most underreported violent crime.”
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