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It was 3.30am and I was balancing on top of a friend in the bedroom of his central London flat. I felt cheerfully inebriated, and my only regret was that I hadn’t stopped for chips and a veggie kebab before getting into an Uber.

As with all good modern romances, we’d both had too many pints and I had slid into his DMs suggestively. It feels important to remember that in this story, I initiated this. It was my idea.

We’d exchanged messages for a while, and now I was sat astride him in the semi-darkness, clothes mostly on the floor. Suddenly and without warning, he reached over and grabbed his phone — a little rude considering what we were currently engaged in, but whatever.

“Could you really quickly just say that you want to have sex with me?” he said, holding the phone out, wide-eyed and earnest, his VoiceNotes app open as if he was poised for some kind of chatty red-carpet interview.

“What?” I said, blinking.

“Could you just say that you consent to having sex with me?”

We’d slept together a few times before and the messages that preceded my arrival were hardly PG. It seemed obvious to me that I’d come here for one reason, so what was he playing at?

As I’m sure you’ve heard, it’s apparently “a scary time for young men”. Decades’ worth of repressed experiences are being brought to the fore, with prominent males falling like grotesque and leering dominos. From Harvey Weinstein to the US Supreme Court’s newest member, Brett Kavanaugh, consent is very much on our minds.

Simultaneously, though, the structures that have allowed this behaviour to continue have made little progress in the way of meaningful change. For every film industry titan who is blacklisted, another lands a new leading role. For every pussy-grabbing politician forced to resign in disgrace, another becomes the President of the United States, and so the debate continues.

Against this cultural backdrop, maybe my surprise was naive. I’m a militant advocate of better consent education, and the employment of enthusiastic giving and requesting of consent in bed, but still, this felt odd. It wasn’t until I heard a similar tale that I realised my experience wasn’t an anomaly.

A friend of a friend, who I will call Poppy (not her real name), was on a night out when she met a minor celebrity who may or may not have spent part of his summer in Mallorca looking for love. They hit it off and she accompanied this man back to his hotel. So far so sexy. When they arrived in his room, however, Mr Low Key Famous explained that his contract was very strict and she would need to record a video of herself giving consent. He asked her to state her full name, that she was there of her own accord and that she consented to having sex with him.

“To be honest, it made me feel a bit like a smash-and-dash,” says Poppy. She is, however, clear that apart from that, this the guy was lovely. “He wasn’t pushy about it at all. It was something I wanted to do, and when I spoke to him about it afterwards, he was so nice about it.”

While both the men we respectively slept with seemed kind and considerate, only Poppy’s was explicit about the reason for the recording. He was pre-emptively covering his back. He said that if she ever tried to claim rape or non-consensual sexual activity, the video would be used as evidence.

The conversation around sex and consent that we are currently living through is, at best complex, and at worst hateful. It’s also saturated with fear and anger as waves of stories about sexual abuse are dragged into the light. The widely accepted truths of what is and is not acceptable are changing so fast that I’m sure many men feel unsure of boundaries. Especially those like the one Poppy met who are in the public eye. It’s easy to understand why having a record of a sexual partner’s consent would feel important. But the implication is that those in a position of power are the ones who need protection, and that’s just not true.

In reality, the vitriol that victims of rape and sexual assault are subject to is enough to put anyone off making a false report. If you don’t believe me, check out the #WhyIDidntReport tag on Twitter. So what’s the easiest way not to need that consent recording? Just don’t rape someone.

While the principle of a consent recording isn’t problematic, the ramifications could be. Just because someone wants to have sex at 3am doesn’t necessarily mean they still do so at 4am or 5am. Details are important as well. What kind of sex is this person consenting to, what protection do they want to use? Most crucially, though, consent can be withdrawn at any time. Both Poppy and I liked the men we went home with, and felt comfortable enough to sleep with them, but that could change, and our partners would have to respect that.

I was assaulted many years ago, and if you’d asked me to record a consent video two hours beforehand, I would have done it, and happily. But funnily enough, that man didn’t check if I minded him trying to have sex with me while I was semi-conscious.

Writing this article, I tried to contact the man who asked me to record my consent. He didn’t reply. Perhaps he’s just a private person and doesn’t want to talk about his sex life in the paper. But I would be intrigued to hear his viewpoint. Unlike the man Poppy slept with, he’s not famous. We knew each other moderately well. Was he really so paranoid that I might go on to accuse him of something he didn’t do?

In the end, I did the voice note and had fully consensual, moderately enjoyable sex. That was my choice. But the emotional complexities of any sexual relationship seem to me to be far beyond what can be “right” or “wrong” in a recording. Consent isn’t a difficult concept but it’s also not as simple as being uncoerced into going back with someone and saying you want to sleep with them. For me, digitally recording consent is a misunderstanding of the concept. But, as the debate around boundaries and behaviour continues to rage in the media, perhaps women should consider practising their speaking voices and camera angles — just in case they’re ever called on to be recorded at short notice.

Here two lawyers give their verdict on "consent videos."

A pre-recorded ‘yes’ can be as ambiguous as saying no, says barrister Kate Fortescue

The issue of consent lies at the heart of virtually all rape trials. In the vast majority of rape cases heard in the Crown Court the victim knows their attacker. Rape trials ordinarily involve one person’s word against another and juries have the difficult task of deciding where the truth lies.

In this digital age a jury is nearly always asked to look at material from phones and computers to help them decide the issue of consent. The police now routinely examine the phones and social media accounts of both parties following an allegation. The Crown Prosecution Service has strict new guidelines relating to the disclosure of communications material. This follows the collapse of a number of high-profile cases where material that undermined the prosecution’s case was not disclosed to the defence.

Defence teams routinely use phone and social media evidence to suggest a relationship was consensual.

Digital media may also undermine a complainant’s reliability, although section 41 of the Youth Justice and Criminal Evidence Act 1999 restricts evidence and questions about a complainant’s sexual history.

When it comes to material that can be put before a jury the basic test of admissibility is “relevance”. Evidence of pre-recorded consent is clearly relevant and something a jury could consider. However, even if consent was freely given, such recordings could never provide a blanket defence.

The law recognises that a person who has freely chosen to have sexual activity with another person once does not give general consent to sexual intercourse with that person on any other occasion. The suggestion that rape can’t take place after consensual sex is a bit like suggesting rape can’t take place within a marriage. The marital rape exemption was abolished in 1991 and since then attitudes have moved on significantly.

Consent may also be withdrawn at any stage during a sexual encounter. Recently I dealt with a case where the victim consented to sexual intercourse with her partner but asked him to stop when it became painful. He didn’t stop. The accused was convicted because of photographic evidence on the victim’s phone showing the black eye he’d given her while she pleaded with him to stop.

Equally, just because someone consents to vaginal intercourse it doesn’t automatically mean they consent to other types of sexual activity.

In theory the person seeking pre-recorded consent would have to set out their sexual shopping list to cover all bases.

In reality, evidence of pre-recorded consent will be looked at in the context of all the evidence in a case. It is unlikely to be determinative when considering the issue of consent. Even in cases where an accuser has failed to mention that consensual sexual activity took place before an alleged rape, evidence of a pre-recorded consent should be treated with care. The circumstances in which it was made and the understanding and capacity of the person giving consent should be looked at with care. A “yes”, pre-recorded or not, can be just as ambiguous as some men suggest a “no” is.

Kate Fortescue is a barrister at 2 King’s Bench Walk Chambers. She prosecutes and defends in all areas of serious crime and is appointed to the panel of advocates who specialise in the prosecution of rape and serious sexual offences

A video is just evidence, it is not determinative of the question of consent, says QC Katy Thorne​

Rape and sexual assault are horribly common offences and the impact on the complainant can be profound and life changing. Deliberately false, or mistaken allegations of such offences do also occur, some of which have been recently reported. Those who are wrongly accused can suffer severe effects on their lives and well-being.

Approximately 15 percent of us (many more women than men) become the complainants in rape and sexual assault cases. It is important then that both men and women understand the law. In order to be guilty of any sexual assault including rape, it must be proved that the complainant did not consent and the defendant did not reasonably believe that she was consenting. So, most cases concern the question: did the woman consent and if not, did the man reasonably believe that she did.

Drunken consent is still consent, if freely given. However, the woman must be capable of consenting, so a woman who is comatose for example, through drink or drugs, or asleep, or so drunk to be unable to make a choice could not be said to be consenting. What about the drunken defendant? Being drunk is not a defence. The reasonableness of the belief of the defendant in consent is judged objectively as if the man was sober, a defendant is not allowed to claim he misjudged the situation through his “beer goggles” and so misread the obvious signs of lack of consent.

What about a woman giving consent and then withdrawing it? Well that is still a lack of consent. A woman can give and can withdraw consent at any time, even once it’s started, and can give conditional consent (eg dependent on contraception).

So, would a recorded or written declaration of consent assist a defendant in the face of a later allegation of rape or sexual assault? The simple answer is yes, in the sense that it would provide evidence of steps having been taken to ascertain consent and would normally be admissible at trial. However, before young men start charging up iPhones for every date, this could be a dangerous road to go down. Such video or oral evidence is just evidence, it is not determinative of the question of consent because the actual encounter may have been different in nature or take place after the complainant had changed her mind. Furthermore, the recording may be discovered by the police, and be used against the defendant to show how intoxicated the woman was, or that there was an element of control or coercion in the exchange. It may also be used by the prosecution to show that the defendant had doubts as to consent or knew he was taking advantage and deliberately trying to protect himself from an anticipated allegation. What’s more, if there is any hint that the woman did not know about the recording, and that the defendant may obtain sexual pleasure from the video, the defendant could find himself facing more charges (such as voyeurism).

It is difficult, particularly for young people to navigate this sort of sexual etiquette. Of course men and boys should be aware of their ability to frighten a woman into silent submission (which is not the same as consent). Of course it’s a good idea to pause and ask the partner: “Are you sure you want to do this?” That allows both parties a moment to make sure that you are content to continue. But the use of video or audio recorded consent is a very unromantic way to ask and may not be the cast iron protection the minor celebrity in this story seeks, in fact texts and social media messages before and after the encounter might be as compelling.

Katy Thorne is a QC at Doughty Street Chambers. Her specialisms include sexual allegations and abuse, child abuse and financial crime.​