Consent

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Consent is agreement or permission to do or allow something.[1] Consent to sexual activity is also an agreement and must also be a voluntary and affirmative agreement between all those involved. [2]

Types of consent

Consent as understood in law may differ from the ordinary English-language meaning. For example, a person under the age of consent may genuinely consent to a sexual act, as understood in English; but that consent is not recognised as valid in law.

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.[3] Another specific example is where a boxer cannot complain of being punched on the nose by an opponent; implied consent will be valid where the violence is ordinarily and reasonably to be contemplated as incidental to the sport in question.[4] Express consent exists when there is oral or written agreement, particularly in a contract. For example, businesses may require that persons sign a waiver (called a liability waiver) acknowledging and accepting the hazards of an activity. This proves express consent, and prevents the person from filing a tort lawsuit for unauthorised actions.

In English law, the principle of volenti non fit injuria applies not only to participants in sport, but also to spectators and to any others who willingly engage in activities where there is a risk of injury. Consent has also been used as a defense in cases involving accidental deaths during sex, which occur during sexual bondage. Time (May 23, 1988) referred to this latter example, as the "rough-sex defense". It is not effective in English law in cases of serious injury or death.

As a term of jurisprudence prior provision of consent signifies a possible defence (an excuse or justification) against civil or criminal liability. Defendants who use this defense are arguing that they should not be held liable for a tort or a crime, since the actions in question took place with the plaintiff or "victim's" prior consent and permission.

Medicine

The question of consent is important in medical law. For example, a medical practitioner may be liable for harm to a patient by a procedure which was not consented to. There are exemptions, such as when the patient is unable to give consent.

Also, a medical practitioner must explain the significant risks of a procedure (those that might change the patient's mind about whether or not to have it) before the patient can give binding consent. This was explored in Australia in Rogers v. Whitaker (1992) 175 CLR 479. If a practitioner does not explain a material risk that subsequently eventuates, then that is considered negligent.[5] These material risks include the loss of chance of a better result if a more experienced surgeon had performed the procedure.[6]

Planning law

Some countries, such as New Zealand with its Resource Management Act and its Building Act, use the term "consent" for the legal process that provide planning permission for developments like subdivisions, bridges or buildings. Achieving permission results in getting "Resource consent" or "Building consent".

Consent to sexual activity

Sexual consent is defined as the "voluntary agreement to engage in sexual activity".[2] Sexual consent must be affirmative consent in Canadian Law: under the Criminal Code of Canada (Section 273.1), the law states "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. [7] Consent can also be revoked at any moment.[8]

Sexual consent plays an important role in defining what sexual assault is, since sexual activity without consent by all parties is considered rape.[9] Children or minors below a certain age, the "age of consent", in said country, are deemed not to be able to give valid consent as understood in law to sexual acts in most jurisdictions. Academic Pineau has 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".[10] Within literature, definitions surrounding consent and how it should be communicated have been contradictory, limited or without consensus. [9]

This is why 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".[11] In U.S., California-Berkeley University has implemented affirmative and continual consent in education and in the school’s policies. [12] 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. [13]

Newer and developing models of sexual consent are "yes means yes" and affirmative such as Hall's definition: "the voluntary approval of what is done or proposed by another; permission; agreement in opinion or sentiment."[8] Hickman and Muehlenhard state that consent should be "free verbal or nonverbal communication of a feeling of willingness' to engage in sexual activity."[14] 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.

Alzheimer's disease or similar disabilities may result in a person being unable to give legal consent to sexual relations even with their spouse.[15]

Affirmative consent

Affirmative consent (enthusiastic yes) is when both parties agree to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures.[12]

It involves communication and the active participation of people involved. This is the approach endorsed by colleges and universities in the U.S., 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).[12] By definition, affirmative consent cannot be given if a person is intoxicated, unconscious or asleep.[12]

There are 3 pillars[12] 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

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.[12] "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." Speaking of affirmative consent in Fall of 2014, a speaker at the University of California noted, "There are lots of ways to express 'yes.' My favorite is 'yes'"[12]

See also

References

  1. ↑ Consent Definition from Merriam-Webster dictionary.
  2. ↑ 2.0 2.1 ConsentEd, Project (2015). "‘What is consent?’". Retrieved March 13, 2015.
  3. ↑ Example of permitted and regulated contact in sport - BBC Sport: Rugby Union: "... you can tackle an opponent in order to get the ball, as long as you stay within the rules."
  4. ↑ Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 at 339
  5. ↑ Chester v. Afshar [2005] 1 AC 134
  6. ↑ Chappel v. Hart (1998) 195 CLR 232
  7. ↑ Criminal Code, Canadian (2015). "‘Canadian Criminal Code’". Retrieved March 13, 2015.
  8. ↑ 8.0 8.1 Hall, David S. (10 August 1998). "‘Consent for Sexual Behavior in a College Student Population’". Electronic Journal of Human Sexuality 1.
  9. ↑ 9.0 9.1 Beres. A, Melanie (18 January 2007). "'Spontaneous' Sexual Consent: An Analysis of Sexual Consent Literature". Feminism & Psychology 17 (93): 93. doi:10.1177/0959353507072914.
  10. ↑ Pineau, Lois (1989). "‘Date Rape: A Feminist Analysis’". Law and Philosophy 8 (217).
  11. ↑ Rawlinson, Kevin (9 March 2015). "'Plans for sexual consent lessons in schools 'do not go far enough". Retrieved March 13, 2015.
  12. ↑ 12.0 12.1 12.2 12.3 12.4 12.5 12.6 Grinberg, E. (29 September 2014). "‘Enthusiastic yes in sex consent education’". Retrieved March 13, 2015.
  13. ↑ Rushowy, Kristin (25 February 2015). "‘In Ontario sex ed, consent the hot issue’". Retrieved March 10, 2015.
  14. ↑ 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.
  15. ↑ 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.