A week that began with thousands of women across the country, energised and angry, taking to the streets, is drawing to a close with a collective female wince.
On Thursday the New South Wales police commissioner, Mick Fuller, waded into the issue of sexual assault with a proposal that was rash at best and disturbing at worst, and delivered in the traditional manner of my home state – via an exclusive story and opinion piece in the News Corp tabloid the Daily Telegraph.
Fuller suggested that technology might play a role in tackling the alarmingly high rate of sexual assault in this country and low rate of conviction, saying an app could be used to record consent before an encounter between two people took place. He likened this transaction to scanning QR codes on Covid apps.
“You can’t walk into a shop at the moment without scanning in,” he told the paper. “Two years ago I would have said ‘you’re mad, I’m not doing that’... Do we protect people dating by having a positive affirmation … in an app?”
While moving to an affirmative consent model is long overdue, this was a bizarre way to suggest doing it. Likening women’s bodies to shops that have to be scanned on entry is a spectacularly insensitive suggestion at the best of times, but during a national reckoning on sexual assault, power and the failure of institutions (including the police) to protect women and give them justice, it is genuinely astounding.
And it quickly proved incendiary: condemned on breakfast television and morning radio, and mocked online as unworkable, bizarre and wholly counterproductive. Even the premier, Gladys Berejiklian, who had such faith in Fuller she gave him an $87, 000 payrise last year, did not publicly back the proposal.
Within hours, Fuller himself conceded it might have been “the worst idea I’ve had all year” before holding a bizarre press conference in which he seemed to simultaneously stand by the idea while conceding it might not work.
The police commissioner may want this whole episode to be quickly forgotten, but it’s worth looking closely at exactly why it caused such fury and what it says about our leaders in this critical moment.
Fuller’s contention was that the app could bring “clarity” to sexual encounters, by giving women a chance to formally declare before a date, in his characterisation, whether they wanted to have sex.
“I’m hoping that technology, whether it’s an app or something else, will save matters going into the justice system because there is clarity that this is just dinner, and this is just a date,” he said.
As every critic (a category that includes just about everyone who has heard this idea) has pointed out, the formulation underlying the app fundamentally misunderstands what consent is. Consent is nothing like signing a contract or ticking a box – it is ongoing and negotiated throughout an encounter by the people involved. It can be withdrawn at any time.
Enthusiasm or willingness to have some kind of sexual contact with someone doesn’t give someone a license to do whatever they want. There are a million possible reasons someone could go on a date hoping that great sex might be on the cards, but later change their mind – there is no vibe, she feels unwell, he is annoying or unsexy or scary. Or, perhaps he reveals himself to be the kind of man who wants a woman to sign away her autonomy on an app – surely a new gold standard for red flags.
It’s actually hard to see any possible benefit for a woman in using an app like this, and I am yet to come across anyone today who would. It offers us nothing – beyond the possibility that an MRA nightmare will say “no backsies!” partway through a date.
Asked whether he had sought any expert advice on the app during the press conference, Fuller could not cite any, and instead deflected: “There are plenty of people out criticising the app, which is good ... The app may never see the light of day, we may never talk about the app again, but I hope we do talk about consent again.”
We don’t know the precise provenance of this idea or who was consulted on it. But it seemingly wasn’t the legal experts, who were quick to point out on Thursday that an app like this may only serve to strengthen the arm of perpetrators and their defence lawyers.
“The proposal is well-intentioned [but] it would seem that the perpetrators of sexual assault might well gain more protection from this than victims,” Andrew Dyer, a senior law lecturer at the University of Sydney, told the ABC.
“If the evidence of consent on the app came into evidence at a trial then [it] could be used against the woman to discredit her.”
Fuller also struggled to explain who would administer the app or how such sensitive data would be collected, saying only it would likely be “a private type app ... these companies who have dating apps, they create these apps that bring people together … surely it’s something they could consider.”
Nervous about the privacy implications of signing up for My Health Record? How about My Sex Record? This would be particularly fraught for women who may fear that data about any sex they have ever consented to could be weaponised against them in legal proceedings, if they were ever to become a victim of sexual assault. There is also the alarming possibility that a woman could be forced or coerced into providing consent on an app, particularly in situations where a perpetrator may have access to her phone.
As his policy proposal disintegrated under scrutiny, Fuller seemed to retreat to the idea that at least his concept “starts the debate”.
This was perhaps the most frustrating part of a deeply weird day.
This “debate” is already well underway. Experts are calling for law reform around consent. Young survivors and their friends are calling for changes to sex education. A public advertising campaign about consent is well overdue.
We don’t need leaders freelancing thought bubbles in their paper of choice, or warning women of the dangers of being attractive, or delivering platitudes about fatherhood, and they don’t deserve praise or participation awards for doing so.
If our male leaders can’t offer women the respect of treating policy in this critical area with the utmost seriousness and rigour, what hope do we have?
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