Technology

Blockchain Sex Contracts Will Be Weaponized Against Women

Instead of requiring consent, we're going to require women to be contracts lawyers.

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It sounds like a panacea: a technology that can record everybody’s intentions so there can be no “miscommunication” about consent. It sounds like just what the #MeToo moment needs.

As we move away from outright sexual assaults, such as those allegedly committed by the President of the United States, and move towards more “gray areas” of scuzzy but non-criminal behavior, increasingly the “I thought she was cool with it,” defense is being deployed. Or the “I’m not a mind reader” defense.

Could smart sex contracts powered by blockchain technology be the solution? Bob Ambrogi reports that a Dutch company, LegalThings One, is planning to launch the “LegalFling” app that will help people comply with Sweeden’s proposed legislation to require explicit contracts for sex.

With LegalFling, if you are, say, on a date and want to take it further, you open the app and send a request for consent. Your date either consents or not. Users can also configure the app to communicate their sexual preferences and boundaries. And if consent is given and pictures are taken, the app can be used to explicitly agree that none may be shared at anytime with anyone afterwards, attaching a penalty clause that can trigger cease-and-desist letters and penalty payments.

I am deeply ambivalent about LegalFling or deploying smart contracts into our sexual discourse. My concerns are not that sex contracts take the “fun” out of sex: I’m of the opinion that sex is pretty damn fun and achieving explicit consent does not diminish its allure. My concern is that explicit consent, memorialized by blockchain, creates a period of time when consent cannot functionally be revoked. Women have a hard enough time “proving” date rape as it is. What police officer (much less stupid freaking JURY) is going to hold a man responsible if he’s holding a smart contract in his hand? How can a woman argue that she revoked consent when the smart contract is going to make it seem like she merely regrets giving consent?

“Users can also configure the app to communicate their sexual preferences and boundaries.” Are you kidding me with that? Professional business people don’t always write contracts that fully communicate their preferences and boundaries. Now we’re expecting couples across the land, most of them with no legal training at all, to effectively communicate the expected parameters of a sexual encounter, before it happens? ONLY NON-LAWYERS think that “getting it in writing” makes things any more CLEAR. Look at nearly ANY breach of contract case and you’ll see that one or both parties were materially confused as to what they were signing when they signed it. What you’re gong to have is a bunch of people trying to explain how their body or trust was violated, and a bunch of regrettable men waving around a phone screaming about the parole evidence rule.

Aside from the fact that it is acceptable AND LEGAL for a person to revoke consent at any time, there’s the more obvious point that consent is a one time offer. But just think about how hard that’s going to be to litigate once you have a smart contract. He says she consented. She says she did not. He says that they have a smart contract from their previous encounter. She says, yeah, that was then, this is now. Defenders of smart contracts will say that the failure to get a second sex contract will help her case. I say: have you at all paid attention to what juries do to women? Because already we live in a world where any past consent to virtually anything is used as evidence against a woman alleging rape.

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If you don’t believe me, go try to prosecute a person for marital rape. See, marriage is the first “sex contract.” And what we’ve seen — throughout human history — is that wives have a very difficult time explaining that they didn’t consent to sex at any point after they’ve entered into that contract. People won’t investigate, people won’t prosecute. People are more likely to believe what Stormy Daniels says about Donald Trump than they are to believe what Ivana Trump says.

Sex contracts are fraught with danger, especially sex contracts that purport to be a perfect snapshot of the entire agreement.

That said, as I’m sure a lot of people reading this are thinking, “That’s worse than where we are now, how?” Women are not believed. Rape, especially rape by an acquaintance, is incredibly hard to prove or even get anybody to prosecute. It would seem that most men don’t even know what consent is, much less how to achieve it enthusiastically and explicitly.

And not for nothing, but as a father of black people, I’m inclined to embrace anything that allows for public codification of relationship statuses. Emmett Till wasn’t the only one. I see a lot of value in smart sex contracts.

I just don’t have a lot of hope that the law will deal with them in any kind of reasonable way. I have NO belief that juries will deal with them in reasonable ways. I fear that the criminal justice system will take these smart contracts and turn them against women.

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We need to be teaching boys and men about consent — enthusiastic, durable consent. It doesn’t help that project when we tell them there’s a document that, if signed, essentially obviates the need for consent.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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