Consent

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Consent is agreement or permission to do or allow something.[1]

Types of consent[edit]

  • Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction).
  • Express consent is clearly and unmistakably stated, rather than implied. It may be given in writing, by speech (orally), or non-verbally, e.g. by a clear gesture such as a nod. Non-written express consent not evidenced by witnesses or an audio or video recording may be disputed if a party denies that it was given.
  • Informed consent in medicine is consent given by a person who has a clear appreciation and understanding of the facts, implications, and future consequences of an action. The term is also used in other contexts.
  • Unanimous consent, or general consent, by a group of several parties (e.g., an association) is consent given by all parties.

Consent as understood in law may differ from the ordinary English-language meaning. For example, a person under the age of consent may genuinely consent to a sexual act, as understood in English; but that consent is not recognised as valid in law.

Tort[edit]

Consent can be either expressed or implied. For example, participation in a contact sport usually implies consent to a degree of contact with other participants, implicitly agreed and often defined by the rules of the sport.[2] Express consent exists when there is oral or written agreement, particularly in a contract. For example, businesses may require that persons sign a waiver (called a liability waiver) acknowledging and accepting the hazards of an activity. This proves express consent, and prevents the person from filing a tort lawsuit for unauthorised actions.

In English law, the principle of volenti non fit injuria applies not only to participants in sport, but also to spectators and to any others who willingly engage in activities where there is a risk of injury. Consent has also been used as a defense in cases involving accidental deaths during sex, which occur during sexual bondage. Time (May 23, 1988) referred to this latter example, as the "rough-sex defense". It is not effective in English law in cases of serious injury or death.

As a term of jurisprudence prior provision of consent signifies a possible defence (an excuse or justification) against civil or criminal liability. Defendants who use this defense are arguing that they should not be held liable for a tort or a crime, since the actions in question took place with the plaintiff or "victim's" prior consent and permission.[citation needed]

Medicine[edit]

The question of consent is important in medical law. For example, a medical practitioner may be liable for harm to a patient by a procedure which was not consented to. There are exemptions, such as when the patient is unable to give consent.

Also, a medical practitioner must explain the significant risks of a procedure (those that might change the patient's mind about whether or not to have it) before the patient can give binding consent. This was explored in Australia in Rogers v. Whitaker (1992) 175 CLR 479. If a practitioner does not explain a material risk that subsequently eventuates, then that is considered negligent.[3] These material risks include the loss of chance of a better result if a more experienced surgeon had performed the procedure.[4]

Planning law[edit]

Some countries, such as New Zealand with its Resource Management Act and its Building Act, use the term "consent" for the legal process that provide planning permission for developments like subdivisions, bridges or buildings. Achieving permission results in getting "Resource consent" or "Building consent".

Consent to sexual activity[edit]

Sexual consent plays an important role in defining what sexual assault is, since sexual activity without consent by all parties is considered rape.[5] Children below a certain age, the "age of consent", are deemed not to be able to give valid consent as understood in law to sexual acts in most jurisdictions. Within the literature concerning sexual activity and consent there is no consensus on a strict definition of the term consent or how it should be communicated.[5] Consent must be voluntary and not obtained by coercion or threats. Consent can be revoked at any moment.[6] Hall defines sexual consent as "the voluntary approval of what is done or proposed by another; permission; agreement in opinion or sentiment" [6] Hickman and Muehlenhard state that consent should be "free verbal or nonverbal communication of a feeling of willingness’ to engage in sexual activity" [7] Pineau has argued that we must move towards a more communicative model of sexuality so that consent becomes more explicit and clear.[8]

See also[edit]

References[edit]

  1. ^ Consent Definition from Merriam-Webster dictionary.
  2. ^ Example of permitted and regulated contact in sport - BBC Sport: Rugby Union: "... you can tackle an opponent in order to get the ball, as long as you stay within the rules."
  3. ^ Chester v. Afshar [2005] 1 AC 134
  4. ^ Chappel v. Hart (1998) 195 CLR 232
  5. ^ a b Beres. A, Melanie (18 January 2007). "'Spontaneous' Sexual Consent: An Analysis of Sexual Consent Literature". Feminism & Psychology 17 (93): 93. doi:10.1177/0959353507072914. 
  6. ^ a b Hall, David S. (10 August 1998). "‘Consent for Sexual Behavior in a College Student Population’". Electronic Journal of Human Sexuality 1. 
  7. ^ Hickman, S.E. and Muehlenhard, C.L. (1999) ‘“By the Semi-mystical Appearance of a Condom”: How Young Women and Men Communicate Sexual Consent in Heterosexual Situations’, The Journal of Sex Research 36: 258–72.
  8. ^ Pineau, Lois (1989). "‘Date Rape: A Feminist Analysis’". Law and Philosophy 8 (217).