Should you get consent on video before sex? That's a 'red flag' for some

Jennifer Smola and Maeve Walsh | The Columbus Dispatch

Show Caption Hide Caption How do you feel about consent apps? Jefferson Graham talks to men and women about how they feel about sexual consent apps in Hermosa Beach, California. The apps record participants giving their consent.

COLUMBUS, Ohio – Some attorneys say written and recorded sexual consent can be the only way for people to defend themselves against accusations of rape. Advocates say that as a standard, it falls woefully short.

Two Ohio State University football players, Amir Riep, 21, and Jahsen Wint, 21, were arrested last week after being accused of kidnapping and raping a 19-year-old woman. The next day, head coach Ryan Day announced he 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 was recovered, police said.

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The idea of seeking “proof” of consent concerns sexual violence researchers and prevention advocates.

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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 written consent for sexual acts, even if it’s just a text message, or any sort of audio or video recording indicating consent.

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

This month, an attorney defending Hollywood producer Harvey Weinstein in his trial on rape and sexual assault charges made similar suggestions.

“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,” Donna Rotunno said on The Daily, a New York Times podcast.

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, 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 responsible for determining the validity of a consent video.

“It’s something that defense attorneys … would love to see, but it’s something a group of jurors would choose to believe or disbelieve,” he said.

Video doesn't mean 'blanket consent'

Sexual assault prevention advocates said they see more instances of young people advised to get proof of consent, but 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, communication 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 … 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 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.

″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 Zoë 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.”

The Sexual Assault Response Network of Central Ohio has a 24/7 hotline for victims of sexual assault at 614-267-7020. Ohio State students, faculty and staff can call 614-688-2518 for on-campus support. More information is available at ohiohealth.com/sarnco.

Follow reporters Jennifer Smola and Maeve Walsh on Twitter: @jennsmola; @maevewalsh27

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