Consent videos not viable as evidence in court, experts say after Hockey Canada trial
'You're okay with this?' a male voice off-camera asks the woman, filmed from the neck up. 'I'm okay with this,' she replies in the six-second video, shot around 3 a.m. on June 19, 2018.
An hour later, a second video shows the woman in a hotel room, shielding herself with a towel. 'Are you recording me?' she asks. 'Okay, good. It was all consensual.'
The two videos were submitted as evidence in the trial of five former Canadian world junior hockey players charged with sexually assaulting the woman in the clips, who is known publicly as E.M. because her identity is protected by a publication ban. All five players have pleaded not guilty.
E.M. testified that she didn't remember either video being shot, but that she felt intimidated and would have said what the players were coaxing her to say.
A Crown attorney in the case argued that the players would have recorded the videos only if they thought there was a possibility that E.M. could later say the sexual interactions weren't consensual. Carter Hart, one of the accused players, pushed back against this suggestion during cross-examination, saying that consent videos are common among professional athletes.
Consent videos are recordings usually taken before, during or after a sexual interaction as a means of documenting consent to pre-empt false accusations. Under Canadian law, these videos don't hold up as proof of consent, which needs to be continuing, voluntary and can be revoked at any time.
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'Because of the strong protections we have courtesy of the Supreme Court around sexual encounters, you're not required to say, 'No, no, stop,'' says Daphne Gilbert, a law professor at the University of Ottawa.
'So having on video a person who's seemingly participating in a sexual activity and not protesting, screaming, pushing the person off doesn't indicate consent,' she says. 'That's not enough to be consent in law.'
Yet since the early 2000s, conversations around the necessity of consent videos and other forms of 'consent contracts' have circulated in online spaces, many of which are dominated by young men. Later, the videos gained wider traction as a misguided takeaway from the #MeToo movement.
Despite the fact that false sexual-assault allegations are the minority, pick-up artists, dating coaches and men's rights influencers have touted the videos as 'rape insurance' to protect young men.
Opinion: To really change the culture around sexual violence, consent can't be taught as a technicality
The concept of consent contracts first emerged in the early 2000s, in the aftermath of the felony sexual-assault charges against Kobe Bryant. Enterprising lawyers started drafting 'pre-sex agreement forms' marketed toward professional athletes who feared they could face similar accusations.
Mr. Bryant and the plaintiff settled in a civil suit and the criminal charges were later dropped, but the case left a legacy of documenting consent among athletes.
Around the same time, comedian Dave Chappelle riffed on the concept, releasing a sketch in which he asks a prospective partner, played by Rashida Jones, to sign a lengthy contract outlining exactly which sexual activities are approved.
A decade later, when the Obama administration provided guidance to colleges on preventing and responding to sexual violence, which included introducing policies around affirmative consent, obtaining consent over video or text became a serious option.
'It was considered threatening enough to a lot of misogynists that the idea of the consent video really took off,' says Nicole Bedera, an American sociologist who researches sexual violence. 'The way people talked about it was 'rape insurance,' now I can't possibly be accused of sexual assault because I have this get-out-of-jail-free card, literally.' '
Ms. Bedera says the concept spread on the Reddit community r/theredpill, one of the original building blocks of the manosphere, the network of blogs, podcasts and influencers promoting misogynist beliefs. On other subreddits about dating and relationships, users suggested that men establish a digital footprint, such as consent videos or text messages with a partner.
Canadian YouTuber Jack Densmore, who posted videos from university parties and coached men on how to pick up women, preached that obtaining a consent video was a critical step in hook-ups. Last month, Mr. Densmore was sentenced to three years in prison for sexually assaulting a McMaster University student in 2020. Evidence included a video taken by Mr. Densmore during the assault without the woman's consent, which he said proved the interaction was consensual.
'The question that always follows these videos is 'Why did you feel the need to make one? Why would you make a video if everything's going to go the way you describe?'' says Ms. Bedera.
In the Hockey Canada case, lawyers representing the hockey players initially sent the videos to The Globe before the trial began, arguing that the footage showed the sexual contact was consensual and that E.M. was not fearful, intimidated or intoxicated as she claimed. The Crown argued in the trial that the videos were evidence that the players were unsure if the interactions were fully consensual.
'I think the people who take these videos don't understand what consent truly means in sexual activity,' said Ms. Gilbert, the law professor. 'They sort of feel like they've got themselves covered, but in law there's no significance to those videos.'
Jonathan Reed, the director of programs at Next Gen Men, a non-profit focused on teaching young men about healthy masculinity, says the teenagers he works with often feel fearful when it comes to navigating intimacy.
'There's an increased awareness of the prevalence of sexual violence. There's also this fear about cancel culture and the real consequences of 'getting it wrong,' ' says Mr. Reed. 'They know they're not supposed to be toxic, but they also know they're expected to be stereotypically masculine if they're going to be taken seriously by the girls that they're interested in.'
In the wake of #MeToo, the language around consent has become more mainstream, but young men are still struggling to grasp how to initiate these conversations. To find support or validation, young men are increasingly turning to YouTube, podcasts and dating-coach influencers for advice.
Those online spaces, however, can push harmful views. Last year, researchers at Dublin City University found that male users are bombarded with anti-feminist and male-supremacist content on TikTok and YouTube Shorts, whether or not they sought out that content.
'That online content around sexuality … it's not necessarily talking about healthy consensual relationships," said Stafford Perry of the Calgary-based group WiseGuyz, which provides a space for young men to have conversations about sex and relationships.
'If young men are turning to the internet, whether that's pornography or Instagram, it's not necessarily about supporting them to have healthy relationships,' he says.
YouTubers have dissected and offered commentary on the trial, some of which cast doubt on E.M.'s testimony, and debate the prevalence of false accusations.
In the programs he facilitates with young men, Mr. Reed instead offers this advice.
'If you're feeling so unpracticed or intoxicated that you might get it wrong, or you have such a lack of trust within your relationship with that person that you can't be sure how things will go the next day after you've been sexually intimate, then rather than taking a video, you should slow down and work towards reciprocal trust.'
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