Should You Record Consent Before Having Sex?

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Should people get consent on video before sex? Let’s talk about it.

USA Today brought up the topic while covering a current case happening in Columbus, Ohio. Two Ohio State University football players, Amir Riep and Jahsen Wint, were arrested last week after being accused of kidnapping and raping a 19-year-old woman. The following day, two 21-year-old college students were dismissed from the University team by head coach Ryan Day. But later, Riep told Columbus police that he had a video of the woman consenting to sex before the incident. Police later confirmed that video’s existence.

Definitions

This then begs the question, was that a good move? Of course, this specific situation happened between straight people. But, the conversation topic is still relevant to LGBTQ people and same-sex couples/situations.

On one hand, having a video confirming consent can seem like a great way to protect oneself. While the rate of false reporting is small, they do happen. Having a way to protect yourself from such accusations is always great in the grand scheme of things.

To drive this point home further, let’s look at some definitions. According to the National Sexual Violence Resource Center, “an unfounded report is a case that is investigated and found to be false or baseless.”  But, there are two different types of unfounded reports. First, there are false reports. “A false report is a reported crime to a law enforcement agency that an investigation factually proves never occurred,” according to the NSVRC. Then there are Baseless reports, which happen when “it is determined that the incident does not meet the elements of the crime, but is presumed truthful.”

Again, the rate of false reporting is real but small. Over a series of studies, the amount seems to be somewhere between 2% and 10%. But with today’s social climate around that issue, some men may feel the need to protect themselves anyway.

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What Do Experts Think?

The idea behind having video recordings of consent is to protect people from false reports. Though, it may not protect people from baseless reports. That’s because baseless reports are so situational that recorded consent may not be relevant or enough. But some lawyers say the precaution is still worth it. According to Columbus criminal defense attorney Brad Koffel, not having a similar plan for defense is dangerous.

“If they don’t,” he told USA Today, “in this climate, then they’re going to suffer some consequences.”

But, there are some who say that recording a video of consent is already suspicious. After all, a lawyer could argue that planning such a video is “a red flag.”

“That’d be a red flag,” Columbus criminal defense attorney Dan Sabol said. “It might look as though they’re trying to cover their tracks.”

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Consent IS Retractable

In addition, you have to consider the fact that consent can be retracted at any time during a sexual encounter. Michael Henry’s recent Adjacent short comes to mind. What if a sexual encounter first starts out ok, but a partner takes things too far or doesn’t listen to the requests of the other participant? At that point, the consent given in a hypothetical video at the encounter’s start may no longer be valid. While having video evidence of consent may seem great, there is still a lot of ambiguity around these issues. When you take into consideration the fact that consent is retractable, there’s even more to discuss.

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Check-In!

So overall, is getting video consent before sex a good idea? Right now, it’s too hard to tell. Honestly, this is a new phase in the world of law concerning sexual assault and rape. Because of that, there is no clear answer to this question yet.

While we wait for more legal precedents around this issue, we beseech every reader of this article to stay vigilant on confirming consent during sex. Confirm consent before the sexual encounter, confirm consent during the sexual encounter, and confirm consent after the sexual encounter. At the end of the day, sex should not just be about receiving pleasure but also about giving pleasure. In order to do that, you have to stay checked in with your partner. Confirming consent is not only a way to do that, but it also puts you in a better stance for legal situations like the one at Ohio State University.

Source: USA Today, NSVRC

What do you think?