Should Lovers Sign a Pre-Sex Contract?

ByABC News via via logo

L O S   A N G E L E S, Jan. 7, 2004 -- The practice of having prospective sex partners sign consent forms before things heat up may be a sign of the times.

Ava Cadell, a Los Angeles-area sex therapist, and her attorney husband came up with the idea of a "sexual consent form."

In the wake of the Kobe Bryant rape case, some professional athletes have said they plan to ask their sexual partners to sign consent forms, according to Sports Illustrated. The Los Angeles Lakers guard is accused of raping a 19-year-old Colorado woman; he says the sex was consensual.

Cadell says her forms are designed not only for someone who might face financial risks if accused of a sexual crime, but for anyone — celebrities, athletes or average Joes — alike. The point is, anyone can be accused of sexual misconduct, Cadell said.

"I designed this when a client came to me and said he had a bad experience with a date even though they had consensual sex," Cadell said on ABCNEWS' Good Morning America.

Sobriety Claim Part of Form

She says four of her clients have used the form successfully in refuting sexual misconduct allegations, and that the owner of one professional basketball team has asked her for the forms, which are available on her Web site.

The form includes a declaration that the parties are sober and will not withdraw consent: "I further declare that I am at this time not under the influence of alcohol, drugs or medication and agree to engage in consensual sex with _______ and to not change my mind before the sex act is over."

There is a spot for both parties' signatures and a date at the bottom. There are two versions of the form — a long version and a short version, that can be easily stashed in one's wallet. In the long version of the form, would-be lovers can initial boxes to confirm that they agree to various sex acts, from fondling to sexual intercourse.

While some people might find the act of handing over a consent form to a prospective lover awkward, Cadell says the action could possibly spice things up a bit. "It's a part of foreplay," Cadell said. "But it's also to protect both sexes. It also protects the woman who doesn't have to sign it if she wants to wait and date some more before having sex."

Bob Russo, an attorney and friend of Cadell's who claims to have used the form, says he believes the agreement provides a man with protection if he decides to take his chances with a "beautiful" lady.

"This clears up all the issues," Russo said. "I get various reactions. There have been people who have said this is ridiculous and insulting but I don't get that too much."

Russo says he also does not want to make himself vulnerable to allegations that could ruin his career. He does not make every woman sign the consent form, but takes it on a case-by-case basis.

But Court TV anchor Lisa Bloom warns that from a legal perspective, the forms may not offer much of a shield.

"You have got to wonder about the legal validity of anything you sign when you are naked," Bloom said.

Bloom says that the part of the form that says a partner cannot change his or her mind before the sex act is over contradicts the law.

"Legally, you can withdraw consent to sex at any time," Bloom said.

Still the document might be of some help to someone accused of sexual assault or misconduct. It could be a small piece of evidence in the defendant's favor, but still vulnerable to attack by the prosecution. In a rape case, it could be argued that the alleged victim was coerced into signing the document, Bloom points out.

"If a woman is forced into sex, she can easily be forced to sign a form," she said.

Bloom says she doubts the forms will become popular. Besides the potential legal objections, the forms simply are not practical. At the bottom of the form, it says, "Check with your attorney before entering into any agreement," advice that may not be easy to follow in the heat of the moment. But Bloom agrees with Cadell that the consent form is a positive thing in that it gets prospective sexual partners to communicate, which prevents misunderstandings.

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