Impossibility of proving consent

USA Today reports on a case where video-recorded consent did not exonerate a couple of Ohio State football players:

Brad Koffel, a Columbus criminal defense attorney in private practice for more than 25 years and managing partner of Koffel Brininger Nesbitt, advises his clients to obtain written consent for sexual acts, even if it’s just a text message, or any sort of audio or video recording indicating consent.

“If they don’t,” he said, “in this climate, then they’re going to suffer some consequences.” ...

Columbus criminal defense attorney Dan Sabol of Sabol Mallory said he would feel concerned if a client obtained written or recorded consent from a sexual partner.

“That’d be a red flag,” he said. “It might look as though they’re trying to cover their tracks.”

Proof of consent might help someone who is falsely accused, Sabol said, but if there is compelling evidence that a sexual act was not consensual, the documentation of consent from a partner could increase the appearance of guilt in a suspect.

“Just because someone says it’s consensual on video doesn’t make it so,” he said. ...

“It should be taken as a red flag that a person would have enough doubts about whether or not consent was established to ... request this type of agreement before or after an encounter,” said Laura Palumbo, communication director for the National Sexual Violence Resource Center. “Because in reality, one of the most important things for people to know about consent is that if you have any doubts … then the interaction should not move forward with your partner.” ...

“A good consensual act or series of events should be active communication the whole time and checking in with their partner,” she said. “They should consent and enthusiastically agree the whole time.”

Got that, a man cannot prove that he has consent unless he has a written statement or recordings. But even then, having proof of his innocence raises a red flag and puts him under further suspicion.

Also, such proof would only show initial consent. He really needs proof that she was enthusiastic the entire time, and that is nearly impossible.

Harvey Weinstein's accusers showed consent before and after the incidents, but he faces life in prison anyway.