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Just when you thought modern dating couldn’t become any more complicated, sexual consent contracts have added another layer. What exactly is a sexual consent contract or a sex agreement? It’s exactly what it sounds like—a signed contract stating that both people (or maybe multiple participants depending on what they’re into) consent to having sex.
“The idea of a consent contract is not new at all,” Alison Berke Morano, the co-founder of The Affirmative Consent Project, says. “The military, athletes, musicians, actors, and other people who have experienced that sexual encounters sometimes get complicated have been using consent agreements for years.”
The Affirmative Consent Project offers “#consentgear” on its website ranging from a consent contract and a guide to ‘Yes Means Yes!’ for $0.35 (not part of the full kit) to three consent kits for $15, which each include “affirmative consent guidelines written out, along with a condom and a couple of mints—so you can ‘take a minute, and take a breath,’” Berke Morano says.
Could a sexual consent form have protected Kobe Bryant and Patrick Kane? Both star athletes were involved in high-profile sexual assault investigations—Bryant in 2003 and Kane recently. While the case against Bryant was ultimately dismissed (he did settle a civil lawsuit with his accuser) and Kane wasn’t charged, there’s no doubt that their reputations are now tainted.
“All of these celebrities have groupies that will do just about anything to have sex with them, but not all of them can be trusted and some may lie about the sex act being consensual,” Cadell says. “Consequently, they could threaten to sue or worse still, make an accusation about sexual assault when it didn’t happen. So these celebrities can protect themselves with condoms from STD’s and unwanted pregnancy, but another form of protection is to have a signed sexual consent form before having any sex.”
However, the consent contracts or sex agreements are not legally binding documents. Cadell says, “The sexual consent form is a cautionary way for one person to ask permission to have sex with another.” And there’s a disclaimer at the bottom of The Affirmative Consent Project’s site, which reads: “This website contains general information about legal matters. The information on this website is not advice, and should not be treated as such. The products are not legally binding. You must not rely on the information on this website as an alternative to legal advice from your attorney or other professional legal services provider.”
Cadell still stands behind her sexual consent form and recommends them for anyone and everyone from celebrities to average Joes, while The Affirmative Consent Project spends a lot of time trying to get their consent kits onto college campuses.
“Of course any contract is contestable, including a surgery consent form, prenuptial, or will,” Cadell says. “But if I were accused, I would rather go to court with a signed sexual consent form than without one. The sexual consent form would be admissible and relevant as evidence of consent if signed by the alleged victim. As for the argument that a woman can be forced into signing it, I contend that a handwriting expert could probably identify a forced signature.”
David Llewellyn, the founder of the Good Lad Initiative at Oxford University, which aims to promote “positive masculinity,” believes that the sexual consent contracts can possibly do more harm than good.
“If someone were to sign a consent contract saying, ‘I consent to having sex with you,’ this may give the people involved the false sense that consent cannot later be revoked, and no matter what happens, it was consensual,” Llewellyn says. “This is simply not the case. Both men and women should be looking to get enthusiastic consent throughout a sexual experience.” (Cadell and Berke Morano both agree that consent is key and say that women can still change their minds about the agreement and opt out at any time, even if they did sign it moments earlier.)
Attorney Neil S. Ruskin says having a signed sexual consent form can discredit the accuser, but he doesn’t think it’s realistic that a contract signed a few minutes before sex or even a day, week, or month earlier would stand up in court. Even if you have a signed sexual consent form, it’s not going to prevent you from being arrested if you’re accused of rape, according to Ruskin.
“If she goes to the police after she has been raped […] and you say, ‘It was consensual sex,’ you’re still going to get arrested,” Ruskin says. “How far will it go is the question then. The cops will have their hands tied. They will have to arrest him. Then it comes down to, ‘When did she say, ‘No’? The police will bring it to the district attorney’s office and a judge and jury will have to decide.”
While the sexual consent forms are intended to protect both the men and women involved, in this instance, the sexual consent form could actually work against one of the main things it’s trying to achieve—protecting women from being sexually assaulted or coming forward to press charges after the assault occurs, especially when you take into consideration that one in five women will be raped in their lifetime and 63% of sexual assaults are not reported to the police in the United States, according to Statistics About Sexual Violence.
And that’s why Llewellyn believes there are better ways to protect people from sexual assault than by signing a sex agreement.
“I think sexual consent contracts would be a very counterproductive thing,” Llewellyn says. “The key issue is that consent is a fluid thing—that is, someone may give consent at one point in time, but may revoke it at another point in time. Furthermore, someone might consent to one thing but not something else (e.g. they may be happy making out and grinding, but not consent to someone putting their hand down their pants).”
Cadell recommends that women use the phrase Code Red to protect themselves “instead of using the words ‘NO’ or ‘STOP’ which have been used frivolously, playfully, and teasingly in the past and are not always taken seriously.”
Berke Morano says that The Affirmative Consent Project’s intention with the consent kits is to open a dialogue between people thinking about having sex and stresses that consent must always be ongoing and continuous. “One of the reasons we added the guide to the consent kit is to promote a healthy conversation about consent and about sex,” Berke Morano says. “Even the conversation about the contract (positive or negative) is promoting the open communication we are going for. We believe that any healthy conversation between consenting adults will help cut down on violence and assault.”
And that’s where everyone is in agreement, even if there are differing opinions as to whether a sexual consent contract actually accomplishes anything.
“It is certainly important for more education to be directed to young men [and women] with regards to consent and the laws surrounding sexual assault and sexual harassment,” Llewellyn says. “However this lack of knowledge does not provide us with any excuse. We all know what it means to treat someone nicely. We all know the level of respect and care that is expected in friendships, amongst family, amongst colleagues. So why wouldn’t we know these things when it comes to sex?”
So, ultimately, do you need a sex agreement? That’s a question you’ll have to answer on your own.