Consent

Consent occurs when one person voluntarily agrees to the proposal or desires of another.[1] 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 low mental age, or under the legal age of sexual consent may willingly engage in a sexual act that still fails to meet the legal threshold for consent as defined by applicable law.

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.[2] Types of consent include implied consent, express consent, informed consent and unanimous consent.

Types

• An express consent is one that 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.
• Implied consent 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 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, 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]

Internet and digital services

The concept of end-user given consent plays an important role in digital regulations such as the European General Data Protection Regulation (GDPR).[4] 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[4]. According to the GDPR, end-users' consent should be valid, freely given, specific, informed and active.[4] 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, i.e. Google, Amazon, Facebook, Apple, and Microsoft (GAFAM), use dark patterns in their consent obtaining mechanisms, which raises doubts regarding the lawfulness of the obtained consent.[4]

Tort

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.[5] 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.[6] 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 (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. 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

See also: Informed consent

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.[3]

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.[7] If a practitioner does not explain a material risk that subsequently eventuates, then that is considered negligent.[8] These material risks include the loss of chance of a better result if a more experienced surgeon had performed the procedure.[9] In the UK, a Supreme Court judgment[10] 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.[11]

Social science research

Social scientists are generally required to obtain informed consent from research participants before asking interview questions or conducting an experiment. Federal law governs social science research that involves human subjects, and tasks institutional review boards (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.[12]^:51–55

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.[12]^:51–55

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

See also: Sexual consent, 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.[13] Consent can also be revoked at any moment.[14]

Sexual consent plays an important role in defining what sexual assault is, since sexual activity without consent by all parties is considered rape.[15][16] 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".[17] 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.[18]

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."[14] Hickman and Muehlenhard state that consent should be "free verbal or nonverbal communication of a feeling of willingness' to engage in sexual activity."[19] 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.[15]

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.[20]

Within literature, definitions surrounding consent and how it should be communicated have been contradictory, limited or without consensus.[15][16] 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.[21] 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.[22] 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.[23]

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".[24] In U.S., California-Berkeley University has implemented affirmative and continual consent in education and in the school's policies.[25] 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.[26]

Affirmative consent

Affirmative consent (enthusiastic yes) is when both parties agree to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures.[27] It involves communication and the active participation of people involved. This is the approach endorsed by colleges and universities in the U.S.,[28] 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)[29], 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).[27] 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[27]

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.[27] "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."[27]

See also

• 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

References

1. "Home : Oxford English Dictionary". www.oed.com. Retrieved 2016-03-24.
2. International technical guidance on sexuality education: An evidence-informed approach (PDF). Paris: UNESCO. 2018. p. 56. ISBN 978-92-3-100259-5.
3. Garner, Bryan (2011). Black's Law Dictionary. West Publishing Co. p. 726.
4. Human, Soheil; Cech, Florian (2021). Zimmermann, Alfred; Howlett, Robert J.; Jain, Lakhmi C. (eds.). "A Human-Centric Perspective on Digital Consenting: The Case of GAFAM". Human Centred Intelligent Systems. Smart Innovation, Systems and Technologies. Singapore: Springer: 139–159. doi:10.1007/978-981-15-5784-2_12. ISBN 978-981-15-5784-2.
5. 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."
6. Pallante v Stadiums Pty Ltd (No 1) [1976] VicRp 29, [1976] VR 331 at 339, Supreme Court (Vic, Australia).
7. Rogers v Whitaker [1992] HCA 58, (1992) 175 CLR 479, High Court (Australia).
8. Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, House of Lords (UK).
9. Chappel v Hart [1998] HCA 55, (1998) 195 CLR 232, High Court (Australia).
10. Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430, Supreme Court (UK).
11. "Supreme Court decision changes doctor-patient relationship forever - Balfour+Manson". www.balfour-manson.co.uk.
12. Chambliss, Daniel F.; Schutt, Russell K. (2016). Making sense of the social world: methods of investigation (Fifth ed.). Los Angeles: Sage. ISBN 9781483380612. OCLC 890179806.
13. Criminal Code, Canadian (2015). "Canadian Criminal Code". Cite journal requires |journal= (help) Retrieved March 13, 2015.
14. Hall, David S. (10 August 1998). "Consent for Sexual Behavior in a College Student Population". Electronic Journal of Human Sexuality. 1.
15. Roffee, James A. (2015). "When Yes Actually Means Yes". 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. pp. 72–91. doi:10.1057/9781137476159_5. ISBN 978-1-349-57052-2.
16. Beres. A, Melanie (18 January 2007). "'Spontaneous' Sexual Consent: An Analysis of Sexual Consent Literature". Feminism & Psychology. 17 (93): 93. doi:10.1177/0959353507072914.
17. Pineau, Lois (1989). "Date Rape: A Feminist Analysis". Law and Philosophy. 8 (217): 217–243. doi:10.1007/BF00160012.
18. 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
19. 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.
20. 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.
21. Roffee, J. A. (2014). "No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights". Human Rights Law Review. 14 (3): 541–572. doi:10.1093/hrlr/ngu023.
22. Roffee, James A. (2014). "The Synthetic Necessary Truth Behind New Labour's Criminalisation of Incest". Social & Legal Studies. 23: 113–130. doi:10.1177/0964663913502068.
23. Roffee, James A. (2015). "When Yes Actually Means Yes". Roffee, James (2015). When Yes Actually Means Yes in Rape Justice. 72 - 91. doi:10.1057/9781137476159.0009. ISBN 9781137476159.
24. Rawlinson, Kevin (9 March 2015). "Plans for sexual consent lessons in schools 'do not go far enough'". Cite journal requires |journal= (help) Retrieved March 13, 2015.
25. Grinberg, E. (29 September 2014). "Enthusiastic yes in sex consent education". Cite journal requires |journal= (help) Retrieved March 13, 2015.
26. Rushowy, Kristin (25 February 2015). "In Ontario sex ed, consent the hot issue". Cite journal requires |journal= (help) Retrieved March 10, 2015.
27. Grinberg, E. (29 September 2014). "Enthusiastic yes in sex consent education". Cite journal requires |journal= (help) Retrieved March 10, 2015.
28. "...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/
29. Humphreys, Terry; Herold, Ed (2003). "Should Universities and Colleges Mandate Sexual Behavior?". Journal of Psychology and Human Sexuality. 15 (1): 33–51. doi:10.1300/J056v15n01_04.