The Info List - Consent

--- Advertisement ---

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. UN agencies and initiatives in sex education programs believe that teaching the topic of consent as part of a comprehensive sexuality education is beneficial.[2]


1 Types 2 Tort 3 Medicine 4 Planning law 5 Sexual activity

5.1 Affirmative

6 See also 7 References


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
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.[3]

Tort[edit] Main article: 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.[4] 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.[5] 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
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] See also: Informed consent 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.[3] 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.[6] If a practitioner does not explain a material risk that subsequently eventuates, then that is considered negligent.[7] These material risks include the loss of chance of a better result if a more experienced surgeon had performed the procedure.[8] In the UK, a Supreme Court
Supreme Court
judgment[9] modernised 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.[10] Planning law[edit] Some countries, such as New Zealand
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[edit] See also: Rape
§ Consent, and Consent (criminal law) 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.[11] Consent can also be revoked at any moment.[12] Sexual consent plays an important role in defining what sexual assault is, since sexual activity without consent by all parties is considered rape.[13][14] 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".[15] 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."[12] Hickman and Muehlenhard state that consent should be "free verbal or nonverbal communication of a feeling of willingness' to engage in sexual activity."[16] 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.[13] 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
Alzheimer's disease
or similar disabilities may be unable to give legal consent to sexual relations even with their spouse.[17] Within literature, definitions surrounding consent and how it should be communicated have been contradictory, limited or without consensus.[13][14] 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.[18] 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.[19] 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.[20] 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".[21] In U.S., California-Berkeley University has implemented affirmative and continual consent in education and in the school’s policies.[22] 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.[23] Affirmative[edit] Affirmative consent (enthusiastic yes) is when both parties agree to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures.[24] It involves communication and the active participation of people involved. This is the approach endorsed by colleges and universities in the U.S.,[25] 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).[24] 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[24]

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.[24] "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."[24] See also[edit]

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


^ "Home : Oxford English Dictionary". www.oed.com. Retrieved 2016-03-24.  ^ International technical guidance on sexuality education: An evidence-informed approach (PDF). Paris: UNESCO. 2018. p. 56. ISBN 978-92-3-100259-5.  ^ a b Garner, Bryan (2011). Black's Law
Dictionary. West Publishing Co. p. 726.  ^ 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." ^ Pallante v Stadiums Pty Ltd (No 1) [1976] VicRp 29, [1976] VR 331 at 339, Supreme Court
Supreme Court
(Vic, Australia). ^ Rogers v Whitaker [1992] HCA 58, (1992) 175 CLR 479, High Court (Australia). ^ Chester v Afshar
Chester v Afshar
[2004] UKHL 41, [2005] 1 AC 134, House of Lords (UK). ^ Chappel v Hart [1998] HCA 55, (1998) 195 CLR 232, High Court (Australia). ^ Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430, Supreme Court
Supreme Court
(UK). ^ " Supreme Court
Supreme Court
decision changes doctor-patient relationship forever - Balfour+Manson". www.balfour-manson.co.uk.  ^ Criminal Code, Canadian (2015). "'Canadian Criminal Code'".  Retrieved March 13, 2015. ^ a b Hall, David S. (10 August 1998). "' Consent for Sexual Behavior in a College Student Population'". Electronic Journal of Human Sexuality. 1.  ^ a b c "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".  ^ 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.  ^ Pineau, Lois (1989). "'Date Rape: A Feminist Analysis'". Law
and Philosophy. 8 (217).  ^ 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. ^ Pam Belluck (April 22, 2015). "Iowa Man Found Not Guilty of Sexually Abusing Wife With Alzheimer's". The New York Times. Retrieved April 23, 2015.  ^ "No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights". Human Rights
Review. 14: 541–572. doi:10.1093/hrlr/ngu023.  ^ "The Synthetic Necessary Truth
Behind New Labour's Criminalisation of Incest". Social & Legal Studies. 23: 113–130. doi:10.1177/0964663913502068.  ^ "Roffee, James (2015). When Yes Actually Means Yes in Rape
Justice. 72 - 91". Archived from the original on 2017-02-02.  ^ Rawlinson, Kevin (9 March 2015). "'Plans for sexual consent lessons in schools 'do not go far enough".  Retrieved March 13, 2015. ^ Grinberg, E. (29 September 2014). "'Enthusiastic yes in sex consent education'".  Retrieved March 13, 2015. ^ Rushowy, Kristin (25 February 2015). "'In Ontario sex ed, consent the hot issue'".  Retrieved March 10, 2015. ^ a b c d e Grinberg, E. (29 September 2014). "'Enthusiastic yes in sex consent education'".  Retrieved March 10, 2015. ^ "...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 https://www.washingtonpost.com/news/in-theory/wp/2015/10/12/affirmative-consent-a-primer/

v t e

Tort law

Intentional torts

Assault Battery False imprisonment Intentional infliction of emotional distress Concepts

Consent Necessity Self defense

Property torts

Trespass Conversion Detinue Replevin Trover

Dignitary torts

Defamation Invasion of privacy Breach of confidence Abuse of process Malicious prosecution Alienation of affections

Economic torts

Fraud Tortious interference Conspiracy Restraint of trade


Public nuisance Rylands v. Fletcher


of care Standard of care Proximate cause Res ipsa loquitur Calculus of negligence Rescue doctrine Duty
to rescue Specific types of negligence

Negligent infliction of emotional distress In employment Entrustment Malpractice

to visitors

Trespassers Licensees Invitees Attractive nuisance

Strict liability

Product liability Ultrahazardous activity


Comparative and contributory negligence Last clear chance Eggshell skull Small penis rule Vicarious liability Volenti non fit injuria Ex turpi causa non oritur actio


Damages Injunction

v t e



Casuistry Consequentialism Deontology

Kantian ethics

of care Existentialist ethics Meta-ethics Particularism Pragmatic ethics Role ethics Virtue


Autonomy Axiology Belief Conscience Consent Equality Care Free will Good and evil Happiness Ideal Justice Morality Norm Freedom Principles Suffering
or Pain Stewardship Sympathy Trust Value Virtue Wrong full index...


Laozi Plato Aristotle Diogenes Valluvar Cicero Confucius Augustine of Hippo Mencius Mozi Xunzi Thomas Aquinas Baruch Spinoza David Hume Immanuel Kant Georg W. F. Hegel Arthur Schopenhauer Jeremy Bentham John Stuart Mill Søren Kierkegaard Henry Sidgwick Friedrich Nietzsche G. E. Moore Karl Barth Paul Tillich Dietrich Bonhoeffer Philippa Foot John Rawls John Dewey Bernard Williams J. L. Mackie G. E. M. Anscombe William Frankena Alasdair MacIntyre R. M. Hare Peter Singer Derek Parfit Thomas Nagel Robert Merrihew Adams Charles Taylor Joxe Azurmendi Christine Korsgaard Martha Nussbaum more...

Applied ethics

Bioethics Business ethics Discourse ethics Engineering ethics Environmental ethics Legal ethics Media ethics Medical ethics Nursing ethics Professional ethics Sexual ethics Ethics
of eating meat Ethics
of technology

Related articles

Christian ethics Descriptive ethics Ethics
in religion Evolutionary ethics Feminist ethics History
of ethics Ideology Islamic ethics Jewish ethics Normative ethics Philosophy
of law Political philosophy Population ethics Social philosophy

Portal Category

v t e

World view

Related terms

Basic beliefs/Beliefs Collective
consciousness/ Collective
unconscious Conceptual system Context Conventions Cultural movement Epic poetry/National epics/Pan-national epics Facts and factoids Framing Ideology Life stance Lifestyle Memes/Memeplex Mental model Metanarrative Mindset Norms Paradigm Philosophical theory Point of view Presuppositions Reality
tunnel Received view Schemata School of thought Set Social reality Theory of everything Umwelt Value system



Academic Attentional Attitude polarization Belief Cognitive (list) Collective
narcissism Confirmation Congruence Cryptomnesia Cultural Ethnocentrism Filter bubble Homophily In-group favoritism Magical thinking Media Observer-expectancy Observational error Selective exposure Selective perception Self-deception Self-fulfilling prophecy
Self-fulfilling prophecy
( Clever Hans
Clever Hans
effect, placebo effect, wishful thinking) Status quo Stereotyping

Change and maintenance

Activism Argument Argumentum ad populum Attitude change Censorship Charisma Circular reporting Cognitive dissonance Critical thinking Crowd manipulation Cultural dissonance Deprogramming Echo chamber Education
(religious, values) Euphemism Excommunication Fearmongering Historical revisionism Ideological repression Indoctrination Media manipulation Media regulation Mind control Missionaries Moral entrepreneurship Persuasion Polite fiction Political engineering Propaganda Propaganda
model Proselytism Psychological manipulation Psychological warfare Religious conversion
Religious conversion
(forced) Religious persecution Religious uniformity Revolutions Rhetoric Self-censorship Social change Social control Social engineering Social influence Social progress Suppression of dissent Systemic bias Woozle effect


(cultural, social) Calendars Ceremonies Coronations Cross-cultural psychology Cultural psychology Doctrine Employment/Serfdom/Slavery Families Funerals/Burial Games Holidays Hygiene
(ritual) Identity (philosophy) (cultural) Institutions Liminality Liturgy Marriage Myth and ritual Oaths Pilgrimages Play Rites of passage (secular) Rituals Social class/Social status/Caste Symbols Symbolic boundaries Worship


Abilene paradox Bandwagon effect Collectives Collective
behavior (animal) Collective
effervescence Collective
intelligence Conformity Consensus theory Crowd psychology Cults Culture-bound syndromes Deindividuation Democracy Emergence Emotional contagion Entitativity False-consensus effect Folie à deux Group action Group dynamics Group emotion Group polarization Groupshift Herd behavior Holism Hysterical contagion Information
cascade Invisible hand Lynching Majoritarianism/Ochlocracy Mass action Mass hysteria Mass psychogenic illness Milieu control Mobbing Moral panic Organizations Peer pressure Pluralistic ignorance Political correctness Pseudoconsensus Scapegoating Self-organization Social action Social behavior Social emotions Social exclusion Social facilitation (animal) Social group Social proof Social psychology Sociology Spontaneous order Status quo Stigmergy Swarm behaviour System justification Viral phenomena


Axioms (tacit assumptions) Conceptual framework Epistemology
(outline) Evidence
(anecdotal, scientific) Explanations Faith
(fideism) Gnosis Intuition Meaning-making Memory Metaknowledge Methodology Observation Observational learning Perception Reasoning (fallacious, logic) Revelation Testimony Tradition
(folklore) Truth
(consensus theory, criteria)


Ætiology Afterlife Anima mundi Being Causality Concepts Consciousness
(mind–body problem) Cosmogony Cosmology
(religious) Creation myth Deities (existence) Destiny Eschatology Everything/Nothing Evolution Existence Fiction/Non-fiction Free will Future History Ideas Idios kosmos Illusions Incarnation Information Intelligence Magic Matter Miracles Mythology
(comparative) National mythoi Nature
(philosophical) Ontology Origin myths (political myths) Otherworlds (axes mundi) Problem of evil Physics
(natural philosophy) Reality Souls Spirit Supernature Teleology Theology Time Unobservables


Æsthetics Almsgiving/Charity Altruism Autonomy Beauty Codes of conduct Comedy Common good Conscience Consent Creativity Disgust Duty Economics Ecstasy (emotional, religious) Elegance Emotions (æsthetic) Entertainment Eroticism Ethics Étiquette Family
values Food and drink prohibitions
Food and drink prohibitions
(unclean animals) Golden Rule Guilt/Culpability Happiness Harmony Honour Human rights Judgement Justice Laws (jurisprudence, religious) Liberty
(political freedom) Love Magnificence Maxims Meaning of life Morality
(public) Obligations Peace Piety Praxeology Principles Punishment Qualities Repentance Reverence Rights Sexuality (ethics) Sin Social stigma Stewardship Styles Sublime, The Suffering Sympathy Taboo Taste Theodicy Trust Unspoken rules Virtues and Vices Works of art Wrongdoing



Nihilism Optimism Pessimism Reclusion Weltschmerz

Economic and political ideologies

Authoritarianism Anarchism Capitalism Christian democracy Collectivism Colonialism Communalism Communism Communitarianism Conservatism Constitutionalism Distributism Environmentalism Extremism Fanaticism Fascism Feminism Fundamentalism Globalism Green politics Imperialism Individualism Industrialism Intellectualism Islamism Liberalism Libertarianism Masculism Militarism Monarchism Nationalism Pacifism Progressivism Radicalism Reformism Republicanism Social democracy Socialism Utilitarianism Veganism


African traditional religions Bahá'í Buddhism Cao Dai Cheondoism Chinese traditional religions Christianity Ethnic religions Hòa Hảo Hinduism Islam Jainism Judaism Korean shamanism Neo-Paganism Rastafarianism Secular/Nonreligious/Agnostic/Atheist Shinto Sikhism Spiritism Taoism Tenrikyo Tenriism Unitarian Universalism Zoroastrianism

Schools of philosophy

Agriculturalism Aristotelianism Atomism Averroism Cartesianism Cārvāka Collectivism Confucianism/New Confucianism Critical theory Cynicism Cyrenaics Determinism Dualism Eleatics Empiricism Eretrian school Epicureanism Existentialism Foundationalism Hedonism Hegelianism Hermeneutics Historicism/New Historicism Holism Humanism/Renaissance humanism Illuminationism ʿIlm al-Kalām Idealism Individualism Ionian Kantianism/Neo-Kantianism Kokugaku Legalism Logicians Materialism Mohism Megarian school Modernism/Postmodernism Monism Natural Law Naturalism (Chinese) Naturalism (western) Nihilism Peripatetic Phenomenology Platonism/Neoplatonism Pluralism Positivism Pragmatism Presocratic Pyrrhonism Pythagoreanism/Neopythagoreanism Rationalism Reductionism Scholasticism/Neo-Scholasticism Social constructionism Sophism Spinozism Stoicism Structuralism/Post-structuralism Thomism Transcendentalism Util