Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as understood in specific contexts may differ from its everyday meaning. For example, a person with a
mental disorder
A mental disorder, also referred to as a mental illness or psychiatric disorder, is a behavioral or mental pattern that causes significant distress or impairment of personal functioning. Such features may be persistent, relapsing and remitti ...
, a low
mental age
Mental age is a concept related to intelligence. It looks at how a specific individual, at a specific age, performs intellectually, compared to average intellectual performance for that individual's actual chronological age (i.e. time elapsed sin ...
, or under the legal
age of sexual consent
Age or AGE may refer to:
Time and its effects
* Age, the amount of time someone or something has been alive or has existed
** East Asian age reckoning, an Asian system of marking age starting at 1
* Ageing or aging, the process of becoming older
* ...
may willingly engage in a sexual act that still fails to meet the legal threshold for consent as defined by applicable law.
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
agencies and initiatives in sex education programs believe that teaching the topic of consent as part of a
comprehensive sexuality education is beneficial. Types of consent include
implied consent
Implied consent is consent which is not expressly granted by a person, but rather implicitly granted by a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). For examp ...
, express consent,
informed consent
Informed consent is a principle in medical ethics and medical law, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatme ...
and
unanimous consent
In parliamentary procedure, unanimous consent, also known as general consent, or in the case of the parliaments under the Westminster system, leave of the house (or leave of the senate), is a situation in which no member present objects to a prop ...
.
Types
* An expression of consent is one that is unmistakably stated, rather than implied. It may be given in
writing
Writing is a medium of human communication which involves the representation of a language through a system of physically Epigraphy, inscribed, Printing press, mechanically transferred, or Word processor, digitally represented Symbols (semiot ...
, by
speech
Speech is a human vocal communication using language. Each language uses Phonetics, phonetic combinations of vowel and consonant sounds that form the sound of its words (that is, all English words sound different from all French words, even if ...
(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
A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often feature f ...
denies that it was given.
*
Implied consent
Implied consent is consent which is not expressly granted by a person, but rather implicitly granted by a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). For examp ...
is consent 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). Examples include unambiguously soliciting or initiating sexual activity or the implied consent to physical contact by participants in a hockey game or being assaulted in a boxing match.
*
Informed consent
Informed consent is a principle in medical ethics and medical law, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatme ...
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, such as in social scientific research, when participants are asked to affirm that they understand the research procedure and consent to it, or in sex, where informed consent means each person engaging in sexual activity is aware of any positive statuses (for sexually transmitted infections and/or diseases) they might expose themselves to.
*
Unanimous consent
In parliamentary procedure, unanimous consent, also known as general consent, or in the case of the parliaments under the Westminster system, leave of the house (or leave of the senate), is a situation in which no member present objects to a prop ...
, or general consent, by a group of several parties (e.g., an
association
Association may refer to:
*Club (organization), an association of two or more people united by a common interest or goal
*Trade association, an organization founded and funded by businesses that operate in a specific industry
*Voluntary associatio ...
) 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 they were competent.
Internet and digital services
The concept of
end-user
In product development, an end user (sometimes end-user) is a person who ultimately uses or is intended to ultimately use a product. The end user stands in contrast to users who support or maintain the product, such as sysops, system administrat ...
given consent plays an important role in digital regulations such as the European
General Data Protection Regulation
The General Data Protection Regulation (GDPR) is a European Union regulation on data protection and privacy in the EU and the European Economic Area (EEA). The GDPR is an important component of EU privacy law and of human rights law, in partic ...
(GDPR).
The GDPR (Article 6) defines a set of different legal bases for lawful processing of personal data. End-users’ consent is only one of these possible bases. However, as a result of the GDPR enforcement (in 2018) and other legal obligations, data controllers (online service providers) have widely developed consent-obtaining mechanisms in recent years.
According to the GDPR, end-users' consent should be ''valid'', ''freely given'', ''specific'', ''informed'' and ''active''.''
'' But the lack of enforceability regarding obtaining lawful consents has been a challenge in the digital world. As an example, a 2020 study, showed that the
Big Tech
Big Tech, also known as the Tech Giants, refers to the most dominant companies in the information technology industry, mostly located in the United States. The term also refers to the four or five largest American tech companies, called the Big ...
, i.e.
Google
Google LLC () is an American multinational technology company focusing on search engine technology, online advertising, cloud computing, computer software, quantum computing, e-commerce, artificial intelligence, and consumer electronics. ...
,
Amazon
Amazon most often refers to:
* Amazons, a tribe of female warriors in Greek mythology
* Amazon rainforest, a rainforest covering most of the Amazon basin
* Amazon River, in South America
* Amazon (company), an American multinational technology c ...
,
Facebook
Facebook is an online social media and social networking service owned by American company Meta Platforms. Founded in 2004 by Mark Zuckerberg with fellow Harvard College students and roommates Eduardo Saverin, Andrew McCollum, Dustin M ...
,
Apple
An apple is an edible fruit produced by an apple tree (''Malus domestica''). Apple fruit tree, trees are agriculture, cultivated worldwide and are the most widely grown species in the genus ''Malus''. The tree originated in Central Asia, wh ...
, and
Microsoft
Microsoft Corporation is an American multinational technology corporation producing computer software, consumer electronics, personal computers, and related services headquartered at the Microsoft Redmond campus located in Redmond, Washing ...
(GAFAM), use
dark pattern
Darkness, the direct opposite of lightness, is defined as a lack of illumination, an absence of visible light, or a surface that absorbs light, such as black or brown.
Human vision is unable to distinguish colors in conditions of very low lu ...
s in their consent obtaining mechanisms, which raises doubts regarding the lawfulness of the obtained consent.
Tort
Consent can be either expressed or implied. For example, participation in a
contact sport
Contact sports are sports that emphasize or require physical contact between players. Some sports, such as mixed martial arts, are scored on impacting an opponent, while others, including rugby football, gridiron football and Australian rules fo ...
usually implies consent to a degree of contact with other participants, implicitly agreed and often defined by the rules of the sport. Another specific example is where a
boxer Boxer most commonly refers to:
* Boxer (boxing), a competitor in the sport of boxing
*Boxer (dog), a breed of dog
Boxer or boxers may also refer to:
Animal kingdom
* Boxer crab
* Boxer shrimp, a small group of decapod crustaceans
* Boxer snipe ee ...
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. Express consent exists when there is oral or written agreement, particularly in a contract. For example, businesses may require that persons
sign
A sign is an object, quality, event, or entity whose presence or occurrence indicates the probable presence or occurrence of something else. A natural sign bears a causal relation to its object—for instance, thunder is a sign of storm, or me ...
a
waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.
Regulatory agencies of state departments or the federal government may issue waivers to exempt companies from certain regulations. For example, a United St ...
(called a
liability waiver
A liability waiver is a legal document that a person who participates in an activity may sign to acknowledge the risks involved in their participation. By doing so, the company attempts to remove legal liability from the business or person responsi ...
) acknowledging and accepting the hazards of an activity. This proves express consent, and prevents the person from filing a
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
lawsuit for unauthorised actions.
In
English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Principal elements of English law
Although the common law has, historically, be ...
, the principle of ''
volenti non fit injuria
''Volenti non fit iniuria'' (or ''injuria'') (Latin: "to a willing person, injury is not done") is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of h ...
'' (
Latin
Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
: "to a willing person, injury is not done") 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
Bondage in the BDSM subculture, is the practice of consensually tying, binding, or restraining a partner for erotic, aesthetic, or somatosensory stimulation. A partner may be physically restrained in a variety of ways, including the use o ...
. ''
Time
Time is the continued sequence of existence and events that occurs in an apparently irreversible succession from the past, through the present, into the future. It is a component quantity of various measurements used to sequence events, to ...
'' (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
In jurisprudence, an excuse is a defense to criminal charges that is distinct from an exculpation. Justification and excuse are different defenses in a criminal case (See Justification and excuse).Criminal Law Cases and Materials, 7th ed. 2012 ...
or justification) against civil or criminal liability.
Defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
s who use this
defense
Defense or defence may refer to:
Tactical, martial, and political acts or groups
* Defense (military), forces primarily intended for warfare
* Civil defense, the organizing of civilians to deal with emergencies or enemy attacks
* Defense industr ...
are arguing that they should not be held
liable
In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencie ...
for a tort or a
crime
In ordinary language, a crime is an unlawful act punishable by a State (polity), state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definit ...
, since the
actions
Action may refer to:
* Action (narrative), a literary mode
* Action fiction, a type of genre fiction
* Action game, a genre of video game
Film
* Action film, a genre of film
* ''Action'' (1921 film), a film by John Ford
* ''Action'' (1980 fi ...
in question took place with the plaintiff or "victim's" prior consent and permission.
Medicine
In medical law, consent is important to protect a medical practitioner from liability for harm to a patient arising from a procedure. 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 or medication (those that might change the patient's mind about whether or not to proceed with the treatment) before the patient can give a binding consent. This was explored in Australia in ''Rogers v Whitaker''. If a practitioner does not explain a material risk that subsequently eventuates, then that is considered negligent. These material risks include the loss of chance of a better result if a more experienced surgeon had performed the procedure.
In the
UK, a
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
judgment modernized the law on consent and introduced a patient-focused test to UK law: allowing the patient rather than the medical professionals to decide upon the level of risk they wish to take in terms of a particular course of action, given all the information available. This change reflects the Guidance of the General Medical Council on the requirement to consent patients, and removes the rule of medical paternalism.
Social science research
Social scientists
Social science is one of the branches of science, devoted to the study of societies and the relationships among individuals within those societies. The term was formerly used to refer to the field of sociology, the original "science of soc ...
are generally required to obtain informed consent from
research participant A research participant, also called a human subject or an experiment, trial, or study participant or subject, is a person who voluntarily participates in human subject research after giving informed consent to be the subject of the research. A rese ...
s before asking interview questions or conducting an experiment. Federal law governs social science research that involves
human subjects, and tasks
institutional review board
An institutional review board (IRB), also known as an independent ethics committee (IEC), ethical review board (ERB), or research ethics board (REB), is a committee that applies research ethics by reviewing the methods proposed for research to ens ...
s (IRBs) at universities, federal or state agencies, and tribal organizations to oversee social science research that involves human subjects and to make decisions about whether or not informed consent is necessary for a social scientific study to go forward. Informed consent in this context generally means explaining the study's purpose to research participants and obtaining a signed or verbal affirmation that the study participants understand the procedures to be used and to consent to participate in the study.
Some types of social scientific research, such as psychological experiments, may use deception as part of the study; in these cases, researchers may not fully describe the procedures to participants, and thus participants are not fully informed. However, researchers are required to debrief participants immediately after the experiment is concluded. Certain populations are considered to be vulnerable, and in addition to informed consent, special protections must be made available to them. These include persons who are incarcerated, pregnant women, persons with disabilities, and persons who have a mental disability. Children are considered unable to provide informed consent.
Planning law
Some countries, such as
New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
with its
Resource Management Act
The Resource Management Act (RMA) passed in 1991 in New Zealand is a significant, and at times, controversial Act of Parliament. The RMA promotes the sustainable management of natural and physical resources such as land, air and water. New Zea ...
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 means… the voluntary agreement of the complainant to engage in sexual activity" without abuse or exploitation of "trust, power or authority", coercion or threats.
[ Retrieved March 13, 2015.] Consent can also be revoked at any moment.
Sexual consent plays an important role in defining what sexual assault is, since
sexual activity
Human sexual activity, human sexual practice or human sexual behaviour is the manner in which humans experience and express their sexuality. People engage in a variety of sexual acts, ranging from activities done alone (e.g., masturbation) ...
without consent by all parties is
rape
Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ag ...
.
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". Many universities have instituted campaigns about consent. Creative campaigns with attention-grabbing slogans and images that market consent can be effective tools to raise awareness of campus sexual assault and related issues.[Thomas KA, Sorenson SB, Joshi M. "Consent is good, joyous, sexy": A banner campaign to market consent to college students. Journal of American College Health. 2016; 64(8):639-650]
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."[ Hickman and Muehlenhard state that consent should be "free verbal or nonverbal communication of a feeling of willingness' to engage in sexual activity." 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.]
Some individuals are unable to give consent. Minors below a certain age, the age of sexual consent
Age or AGE may refer to:
Time and its effects
* Age, the amount of time someone or something has been alive or has existed
** East Asian age reckoning, an Asian system of marking age starting at 1
* Ageing or aging, the process of becoming older
* ...
in that jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
, are deemed not able to give valid consent by law to sexual acts. Likewise, persons with Alzheimer's disease
Alzheimer's disease (AD) is a neurodegeneration, neurodegenerative disease that usually starts slowly and progressively worsens. It is the cause of 60–70% of cases of dementia. The most common early symptom is difficulty in short-term me ...
or similar disabilities may be unable to give legal consent to sexual relations even with their spouse.
Within literature, definitions surrounding consent and how it should be communicated have been contradictory, limited or without consensus.[ 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. 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 if all parties are consenting. 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.
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 myth
Rape myths are prejudicial, stereotyped, and false beliefs about sexual assaults, rapists, and rape victims. They often serve to excuse sexual aggression, create hostility toward victims, and bias criminal prosecution.
Extensive research has bee ...
s".[ Retrieved March 13, 2015.] In U.S., California-Berkeley University has implemented affirmative and continual consent in education and in the school's policies.[ Retrieved March 13, 2015.] 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.[ Retrieved March 10, 2015.]
Affirmative consent
Affirmative consent (enthusiastic yes) is when both parties agree to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures.[ Retrieved March 10, 2015.] It involves communication and the active participation of people involved. This is the approach endorsed by colleges and universities in the U.S., which describe consent as an "affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity." Notably, past research has found that college students generally held unfavorable attitudes toward institutional affirmative consent requirements (e.g., Antioch’s policy), stating issues related to endorsement and practicality of these mandated policies . 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).[ 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:
# Knowing exactly what and how much I'm agreeing to
# Expressing my intent to participate
# Deciding freely and voluntarily to participate][
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.][ "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."][
]
See also
*Age of consent
The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim ...
*Assumption of risk
Assumption of risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and kno ...
*Consent of the governed
In political philosophy, the phrase consent of the governed refers to the idea that a government's legitimacy and moral right to use state power is justified and lawful only when consented to by the people or society over which that political powe ...
*'' Saverland v Newton''
*Sex positive
The sex-positive movement is a social movement, social and philosophical movement that seeks to change cultural attitudes and norms around sexuality, promoting the recognition of sexuality (in the countless forms of expression) as a natural and he ...
*Sociocracy
Sociocracy is a theory of governance that seeks to create psychologically safe environments and productive organizations. It draws on the use of consent, rather than majority voting, in discussion and decision-making by people who have a shar ...
(decision-making by consent)
*Victim blaming
Victim blaming occurs when the victim of a crime or any wrongful act is held entirely or partially at fault for the harm that befell them. There is historical and current prejudice against the victims of domestic violence and sex crimes, such as ...
*''Volenti non fit injuria
''Volenti non fit iniuria'' (or ''injuria'') (Latin: "to a willing person, injury is not done") is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of h ...
''
References
{{Authority control
Tort law
Autonomy
Concepts in ethics
Medical ethics
Legal defenses