18/8/2017 Consent - Wikipedia

Consent
From Wikipedia, the free encyclopedia

In common speech, consent occurs when one person voluntarily agrees to the proposal or desires of another.[1]
The concept of consent has been operationalized in several major contexts, including in law, medicine and
sexual relationships. Types of consent include implied consent, expressed consent, informed consent and
unanimous consent. Consent as understood in legal contexts may differ from the everyday meaning. For
example, a person with a mental disorder, one with a low mental age or one under the legal age of sexual
consent may willingly engage in a sexual act, but that consent is not valid in a legal context.

Contents
1 Types
2 Tort
3 Medicine
4 Planning law
5 Sexual activity
5.1 Affirmative
6 Social media
7 See also
8 References

Types
Implied consent is a 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). Some examples include implied consent to follow rules and/or regulations at
an education institution.
Expressed 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.
Substituted consent, or the substituted judgment doctrine, allows a decision maker to attempt to establish
the decision an incompetent person would have made if he or she were competent.[2]

Tort
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.[3] Another specific example is where a boxer cannot complain of being punched on the nose by an
opponent; implied consent will be valid where the violence is ordinarily and reasonably to be contemplated
as incidental to the sport in question.[4] 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.

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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.

Medicine
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.[2]

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.[5] These material risks include the loss of chance of
a better result if a more experienced surgeon had performed the procedure.[6]

Planning law
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".

Sexual activity
In Canada "consent meansthe voluntary agreement of the complainant to engage in sexual activity" without
abuse or exploitation of "trust, power or authority", coercion or threats.[7] Consent can also be revoked at any
moment.[8]

Sexual consent plays an important role in defining what sexual assault is, since sexual activity without consent
by all parties is considered rape.[9][10] In the late 1980s, academic Lois Pineau argued that we must move
towards a more communicative model of sexuality so that consent becomes more explicit and clear, objective
and layered, with a more comprehensive model than "no means no" or "yes means yes".[11]

Since the late 1990s, new models of sexual consent have been proposed. Specifically, the development of "yes
means yes" and affirmative models, such as Hall's definition: "the voluntary approval of what is done or
proposed by another; permission; agreement in opinion or sentiment."[8] Hickman and Muehlenhard state that
consent should be "free verbal or nonverbal communication of a feeling of willingness' to engage in sexual
activity."[12] Affirmative consent may still be limited since the underlying, individual circumstances
surrounding the consent cannot always be acknowledged in the "yes means yes", or in the "no means no",
model.[9]

Some individuals are unable to give consent. Children or minors below a certain age, the age of sexual consent
in that jurisdiction, are deemed not able to give valid consent by law to sexual acts. Likewise, persons with
Alzheimer's disease or similar disabilities may be unable to give legal consent to sexual relations even with
their spouse.[13]

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Within literature, definitions surrounding consent and how it should be communicated have been contradictory,
limited or without consensus.[9][10] Roffee argued that legal definition needs to be universal, so as to avoid
confusion in legal decisions. He also demonstrated how the moral notion of consent does not always align with
the legal concept. For example, some adult siblings or other family members may voluntarily enter into a
relationship, however the legal system still deems this as incestual, and therefore a crime.[14] Roffee argues that
the use of particular language in the legislation regarding these familial sexual activities manipulates the reader
to view it as immoral and criminal, even in all parties are consenting.[15] Similarly, some children under the
legal age of consent may knowingly and willingly choose to be in a sexual relationship. However the law does
not view this as legitimate. Whilst there is a necessity for an age of consent, it does not allow for varying levels
of awareness and maturity. Here it can be seen how a moral and a legal understanding do not always align.[16]

Initiatives in sex education programs are working towards including and foregrounding topics of and
discussions of sexual consent, in primary, high school and college Sex Ed curricula. In the UK, the Personal
Social Health and Economic Education Association (PSHEA) is working to produce and introduce Sex Ed
lesson plans in British schools that include lessons on "consensual sexual relationships," "the meaning and
importance of consent" as well as "rape myths".[17] In U.S., California-Berkeley University has implemented
affirmative and continual consent in education and in the schools policies.[18] In Canada, the Ontario
government has introduced a revised Sex Ed curriculum to Toronto schools, including new discussions of sex
and affirmative consent, healthy relationships and communication.[19]

Affirmative

Affirmative consent (explicit yes) is when both parties agree to sexual conduct, either through clear, verbal
communication or nonverbal cues or gestures.[20] It involves communication and the active participation of
people involved. This is the approach endorsed by colleges and universities in the U.S.,[21] who describe
consent as an "affirmative, unambiguous, and conscious decision by each participant to engage in mutually
agreed-upon sexual activity." According to Yoon-Hendricks, a staff writer for Sex, Etc., "Instead of saying 'no
means no,' 'yes means yes' looks at sex as a positive thing." Ongoing consent is sought at all levels of sexual
intimacy regardless of the parties' relationship, prior sexual history or current activity ("Grinding on the dance
floor is not consent for further sexual activity," a university policy reads).[20] By definition, affirmative consent
cannot be given if a person is intoxicated, unconscious or asleep.

There are 3 pillars often included in the description of sexual consent, or "the way we let others know what
we're up for, be it a good-night kiss or the moments leading up to sex."

They are:

1. Knowing exactly what and how much I'm agreeing to

2. Expressing my intent to participate
3. Deciding freely and voluntarily to participate[20]

To obtain affirmative consent, rather than waiting to say or for a partner to say "no," one gives and seeks an
explicit "yes." This can come in the form of a smile, a nod or a verbal yes, as long as it's unambiguous,
enthusiastic and ongoing. "There's varying language, but the language gets to the core of people having to
communicate their affirmation to participate in sexual behavior," said Denice Labertew of the California
Coalition Against Sexual Assault.[20] "It requires a fundamental shift in how we think about sexual assault. It's
requiring us to say women and men should be mutually agreeing and actively participating in sexual
behavior."[20]

Social media
Consent is increasingly important in social media, particularly with regard to the use of personal data. Usually
consent to collect and process personal data is asked for when registering for social media. When registering or
creating an account, terms and conditions and privacy policies are presented to prospective users, but these

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documents are rarely read. Terms and conditions and privacy policies may change, but consent is rarely
renewed. Expiration dates for consent have been suggested,[22] but are not practiced by social media.

See also
Sex positive
Age of consent
Victim blaming
Assumption of risk
Consent of the governed
Sociocracy (decision-making by consent)
Volenti non fit injuria
Saverland v Newton

References
1. "Home : Oxford English Dictionary" (http://www.oed.com/view/Entry/39517?rskey=7YN1Zi&result=1#
eid). www.oed.com. Retrieved 2016-03-24.
2. Garner, Bryan (2011). Black's Law Dictionary. West Publishing Co. p. 726.
3. 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." (http://news.bbc.co.uk/sport1/hi/ru
gby_union/rules_and_equipment/4200680.stm)
4. Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 (http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/v
ic/VicRp/1976/29.html?stem=0&synonyms=0&query=title(pallante%20and%20stadiums%20pty%20lt
d%20)) at 339
5. Chester v. Afshar [2005] 1 AC 134
6. Chappel v. Hart (1998) 195 CLR 232
7. Criminal Code, Canadian (2015). "Canadian Criminal Code" (http://laws-lois.justice.gc.ca/eng/acts/C-4
6/page-137.html#docCont). Retrieved March 13, 2015.
8. Hall, David S. (10 August 1998). "Consent for Sexual Behavior in a College Student Population".
Electronic Journal of Human Sexuality. 1.
9. "Roffee James A., When Yes Actually Means Yes: Confusing Messages and Criminalising Consent in
Rape Justice: Beyond the Criminal Law eds. Powell A., Henry N., and Flynn A., Palgrave, 2015" (http://l
ink.springer.com/chapter/10.1057%2F9781137476159_5).
10. Beres. A, Melanie (18 January 2007). " 'Spontaneous' Sexual Consent: An Analysis of Sexual Consent
Literature". Feminism & Psychology. 17 (93): 93. doi:10.1177/0959353507072914 (https://doi.org/10.11
77%2F0959353507072914).
11. Pineau, Lois (1989). "Date Rape: A Feminist Analysis". Law and Philosophy. 8 (217).
12. 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: 25872.
13. Pam Belluck (April 22, 2015). "Iowa Man Found Not Guilty of Sexually Abusing Wife With
Alzheimers" (https://www.nytimes.com/2015/04/23/health/iowa-man-found-not-guilty-of-sexually-abusi
ng-wife-with-alzheimers.html). The New York Times. Retrieved April 23, 2015.
14. "No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human
Rights". Human Rights Law Review. 14: 541572. doi:10.1093/hrlr/ngu023 (https://doi.org/10.1093%2F
hrlr%2Fngu023).
15. "The Synthetic Necessary Truth Behind New Labours Criminalisation of Incest" (http://journals.sagepu
b.com/doi/abs/10.1177/0964663913502068?legid=spsls%3B23%2F1%2F113&patientinform-links=yes).
Social & Legal Studies. 23: 113130. doi:10.1177/0964663913502068 (https://doi.org/10.1177%2F0964
663913502068).
16. "Roffee, James (2015). When Yes Actually Means Yes in Rape Justice. 72 - 91" (https://web.archive.org/
web/20170202053600/http://www.palgraveconnect.com/pc/doifinder/10.1057/9781137476159.0009).
Archived from the original (http://www.palgraveconnect.com/pc/doifinder/10.1057/9781137476159.000
9) on 2017-02-02.

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17. Rawlinson, Kevin (9 March 2015). " 'Plans for sexual consent lessons in schools 'do not go far enough".
Retrieved March 13, 2015.
18. Grinberg, E. (29 September 2014). "Enthusiastic yes in sex consent education" (http://www.cnn.com/20
14/09/03/living/affirmative-consent-school-policy/). Retrieved March 13, 2015.
19. Rushowy, Kristin (25 February 2015). "In Ontario sex ed, consent the hot issue" (http://www.thestar.co
m/yourtoronto/education/2015/02/25/in-ontario-sex-ed-consent-the-hot-issue.html). Retrieved March 10,
2015.
20. Grinberg, E. (29 September 2014). "Enthusiastic yes in sex consent education" (http://www.cnn.com/20
14/09/03/living/affirmative-consent-school-policy/). Retrieved March 10, 2015.
21. "...affirmative consent standards have been adopted at colleges across the nation, including every ivy
league university except Harvard. "Affirmative consent: A primer" Christine Emba Washington Post Oct
12 2015 http://www.washingtonpost.com/news/in-theory/wp/2015/10/12/affirmative-consent-a-primer/
22. Custers, Bart (2016-01-05). "Click here to consent forever: Expiry dates for informed consent" (http://dx.
doi.org/10.1177/2053951715624935). Big Data & Society. 3 (1): 2053951715624935. ISSN 2053-9517
(https://www.worldcat.org/issn/2053-9517). doi:10.1177/2053951715624935 (https://doi.org/10.1177%2
F2053951715624935).

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