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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 called 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 In internal medici ...
, 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 sinc ...
, or under the legal
age of sexual consent The age of consent is the age at which a person is considered to be legally competent to consent to Human sexual activity, sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is una ...
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 aiming to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be a centre for harm ...

United Nations
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 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 re ...
, express consent,
informed consent Informed consent is a principle in medical ethics Medical ethics is an applied branch of ethics Ethics or moral philosophy is a branch of philosophy Philosophy (from , ) is the study of general and fundamental questions, such as those a ...
and
unanimous consent In parliamentary procedure Parliamentary procedure is the accepted rules Rule or ruling may refer to: Human activity * The exercise of political Politics (from , ) is the set of activities that are associated with Decision-making, ma ...
.


Types

* An express consent is one that is clearly and unmistakably stated, rather than implied. It may be given in
writing Writing is a medium of human communication Communication (from Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area arou ...

writing
, by
speech Speech is human vocal communication Communication (from Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin ''c ...
(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 A host is a person responsible for guests at an event or for providing hospitality during it. Host may also refer to: Places *Host, Pennsylvania, a village in Berks Cou ...
denies that it was given. *
Implied consent Implied consent is consent 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 re ...
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). Some 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 Medical ethics is an applied branch of ethics Ethics or moral philosophy is a branch of philosophy Philosophy (from , ) is the study of general and fundamental questions, such as those a ...
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 Parliamentary procedure is the accepted rules Rule or ruling may refer to: Human activity * The exercise of political Politics (from , ) is the set of activities that are associated with Decision-making, ma ...
, 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 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 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 sysop A sysop (; an abbre ...
given consent plays an important role in digital regulations such as the European
General Data Protection Regulation The General Data Protection Regulation (EU2016/679(GDPR) is a regulation Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and so ...
(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, the Big Four, and the Big Five, is a name given to the five largest and most dominant companies in the information technology industry of the United States The United States of America (U.S.A. o ...
, i.e.
Google Google LLC is an American multinational Multinational may refer to: * Multinational corporation, a corporate organization operating in multiple countries * Multinational force, a military body from multiple countries * Multinational stat ...

Google
,
Amazon Amazon usually refers to: * Amazons In Greek mythology, the Amazons (Ancient Greek: Ἀμαζόνες ''Amazónes'', singular Ἀμαζών ''Amazōn'') are portrayed in a number of ancient Greek, ancient epic poems and legends, such as the ...
,
Facebook Facebook is an American online social media and social networking service owned by Meta Platforms. Founded in 2004 by Mark Zuckerberg with fellow Harvard College students and roommates Eduardo Saverin, Andrew McCollum, Dustin Moskovitz, an ...

Facebook
,
Apple An apple is an edible fruit In botany Botany, also called , plant biology or phytology, is the science of plant life and a branch of biology. A botanist, plant scientist or phytologist is a scientist who specialises in this fie ...
, and
Microsoft Microsoft Corporation is an American multinational corporation, multinational technology company, technology corporation which produces Software, computer software, consumer electronics, personal computers, and related services. Its best-know ...

Microsoft
(GAFAM), use
dark pattern A dark pattern is "a user interface that has been carefully crafted to trick users into doing things, such as buying overpriced insurance with their purchase or signing up for recurring bills". User experience designer Harry Brignull coined the ne ...
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 foo ...
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 Boxing is a combat sport A combat sport, or fighting sport, is a competitive contact sport that usually involves one-on-one combat. In many combat sports, a contestant wins by scoring more points than the opponent or by disabling the opponent ...

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. 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 Object may refer to: General meanings * Object (philosophy), a thing, being, or concept ** Entity, something that is tangible and within the grasp of the senses ** Object (abstract), an object which does not exist at ...

sign
a
waiver A waiver is the voluntary wikt:relinquishment, relinquishment or Surrender (law), surrender of some known Rights, right or privilege. Regulatory agencies of state departments or the federal government may issue waivers to exempt companies from ...
(called a
liability waiver A liability waiver is a legal document ''Legal instrument'' is a law, legal term of art that is used for any formally executed written document that can be formally attributed to its author, records and formally expresses a legally enforceable ac ...
) acknowledging and accepting the hazards of an activity. This proves express consent, and prevents the person from filing a
tort A tort, in common law In law, common law (also known as judicial precedent or judge-made law, or ) is the body of law created by judges and similar quasi-judicial by virtue of being stated in written opinions. ' is the most-used legal dict ...

tort
lawsuit for unauthorised actions. In
English law English law is the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Blac ...
, the principle of ''
volenti non fit injuria ''Volenti non fit iniuria'' (or ''injuria'') (Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. ...
'' (
Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. Through the power of the Roman Republic, it became ...

Latin
: "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 Consent, consensually tying, binding, or restraining a partner for erotic, Aesthetics, aesthetic, or somatosensory system, somatosensory stimulation. A partner may be physical restraint, phys ...

sexual bondage
. ''
Time Time is the continued sequence of existence and event (philosophy), events that occurs in an apparently irreversible process, irreversible succession from the past, through the present, into the future. It is a component quantity of various me ...
'' (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 Jurisprudence, or legal theory, is the theoretical study of the propriety of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to for ...

excuse
or justification) against civil or criminal liability.
Defendant In court proceedings, a defendant is a person A person (plural people or persons) is a being that has certain capacities or attributes such as reason Reason is the capacity of consciously applying logic Logic is an interdisciplinary fi ...
s who use this
defense Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military) A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is ...
are arguing that they should not be held liable for a tort or a
crime In ordinary language, a crime is an unlawful act punishable by a state State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newspaper ...

crime
, since the actions 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 , a
Supreme Court A supreme court is the highest court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of just ...
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

are generally required to obtain informed consent from
research participantA 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 Human subject research is systematic, scientific investigation that can ...
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 type of committee A committee or commission is a body of one or more persons that is subor ...
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 ''Aotearoa'' (; commonly pronounced by English English usually refers to: * English language English is a West Germanic languages, West Germanic language first spoken in History of Anglo-Saxon Engl ...

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 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 Human sexuality is the way people experience and express themselves sexually. This involves bio ...
without consent by all parties is
rape Rape is a type of sexual assault Sexual assault is an act in which one intentionally sexually touches another person without that person's consent Consent occurs when one person voluntarily agrees to the proposal or desires of another. ...

rape
. 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. Children or
minors Minor may refer to: * Minor (law) In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenc ...
below a certain age, the
age of sexual consent The age of consent is the age at which a person is considered to be legally competent to consent to Human sexual activity, sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is una ...
in that
jurisdiction Jurisdiction (from Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin ''communicare'', meaning "to share" or "to be i ...
, are deemed not able to give valid consent by law to sexual acts. Likewise, persons with
Alzheimer's disease Alzheimer's disease (AD), also referred to simply as Alzheimer's, is a neurodegenerative disease A neurodegenerative disease is caused by the progressive loss of structure or function of neuron A neuron or nerve cell is an membrane p ...
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, stereotype Police officers buying doughnuts and coffee, an example of perceived stereotypical behavior in North America. In social psychology Social psychology is the Science, scientific study of how the ...
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 In United States and Canadian law, competence concerns the mental capacity of an individual to participate in legal proceedings or transactions, and the ...
*
Assumption of risk Assumption of risk is a 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 enemy attacks ...
*
Consent of the governed 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 understo ...
*'' Saverland v Newton'' * Sex positive *
Sociocracy Sociocracy, also called dynamic governance, is a system of governance which seeks to create psychologically safe environments and productive organizations. It is distinguished by the use of consent Consent occurs when one person voluntaril ...
(decision-making by consent) *
Victim blaming Victim blaming occurs when the victim of a crime In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted defini ...
*''
Volenti non fit injuria ''Volenti non fit iniuria'' (or ''injuria'') (Latin Latin (, or , ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken in the area around Rome, known as Latium. ...
''


References

{{Authority control Tort law Autonomy Concepts in ethics Medical ethics Legal defenses