Consent
Encyclopedia
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.
If a person signs
a document
stating that he or she is aware of the hazards of an activity, and that individual is then injured during that activity, the express consent given in advance may excuse another person who caused an injury to that person.
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, which occur during sexual bondage
. Time (May 23, 1988) referred to this latter example, as the "rough-sex defense" but it is not effective in English law when serious injury or death results.
As a term of jurisprudence prior provision of consent signifies a possible defence (an excuse
or justification) against civil or criminal liability. Defendant
s who use this defense
are arguing that they should not be held liable
for a tort
or a crime
, since the actions in question occurred with the plaintiff or "victim's" prior consent and permission.
For rape
that involves criminal law
in the United Kingdom, see consent (criminal law).
Also, a surgeon 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 surgeon 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.
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".
Types of consent
- Implied consentImplied consentImplied consent is a controversial 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...
is a controversial 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). - Expressed consent may be in verbal, nonverbal or written form and is clearly and unmistakably stated.
- Verbal consent is given by using verbal communication.
- Nonverbal consent is given by using nonverbal communicationNonverbal communicationNonverbal communication is usually understood as the process of communication through sending and receiving wordless messages. Messages can be communicated through gestures and touch , by body language or posture, by facial expression and eye contact...
.
- Unanimous consentUnanimous consentIn parliamentary procedure, unanimous consent, also known as general consent, or in the case of the parliaments under the Westminster system, leave of the house, is a situation in which no one present objects to a proposal. The chair may state, for instance: "If there is no objection, the motion...
, or general consent, is a parliamentary procedure.
Tort
Can be either expressed or implied. For example, participation in a contact sport usually implies consent to contact by other participants, when contact is permitted by the rules of the sport. Express consent exists when verbal or written contractual agreement occurs.If a person signs
Signature
A signature is a handwritten depiction of someone's name, nickname, or even a simple "X" that a person writes on documents as a proof of identity and intent. The writer of a signature is a signatory. Similar to a handwritten signature, a signature work describes the work as readily identifying...
a document
Document
The term document has multiple meanings in ordinary language and in scholarship. WordNet 3.1. lists four meanings :* document, written document, papers...
stating that he or she is aware of the hazards of an activity, and that individual is then injured during that activity, the express consent given in advance may excuse another person who caused an injury to that person.
In English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, the principle of volenti non fit injuria
Volenti non fit injuria
Volenti non fit injuria is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they will not be able to bring a claim against the other party in tort or delict...
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, which occur during sexual bondage
Bondage (BDSM)
Bondage is the use of restraints for the sexual pleasure of the parties involved. It may be used in its own right, as in the case of rope bondage and breast bondage, or as part of sexual activity or BDSM activity.- Private bondage :...
. Time (May 23, 1988) referred to this latter example, as the "rough-sex defense" but it is not effective in English law when serious injury or death results.
As a term of jurisprudence prior provision of consent signifies a possible defence (an excuse
Excuse
In jurisprudence, an excuse or justification is a defense to criminal charges that is distinct from an exculpation. In this context, "to excuse" means to grant or obtain an exemption for a group of persons sharing a common characteristic from a potential liability. "To justify" as in justifiable...
or justification) against civil or criminal liability. Defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
s who use this defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
are arguing that they should not be held liable
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
for a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
or a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
, since the actions in question occurred with the plaintiff or "victim's" prior consent and permission.
For rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
that involves criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
in the United Kingdom, see consent (criminal law).
Medicine
The question of consent is important in medical law. For example, a surgeon may be liable in trespass (battery) if they do not obtain consent for a procedure. There are exemptions, such as when the patient is unable to give consent.Also, a surgeon 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 surgeon 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.
Planning law
Some countries, such as New ZealandNew Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
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".
See also
- Assumption of riskAssumption of riskAssumption of risk is a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the...
- Consent of the governedConsent of the governed"Consent of the governed" is a phrase synonymous with a political theory wherein a government's legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which that political power is exercised...
- Implied consentImplied consentImplied consent is a controversial 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...
- Volenti non fit injuriaVolenti non fit injuriaVolenti non fit injuria is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they will not be able to bring a claim against the other party in tort or delict...
- Age of consentAge of consentWhile the phrase age of consent typically does not appear in legal statutes, when used in relation to sexual activity, the age of consent is the minimum age at which a person is considered to be legally competent to consent to sexual acts. The European Union calls it the legal age for sexual...
- Decision-making by consentSociocracySociocracy is a system of governance, using consent-based decision making among equivalent individuals and an organizational structure based on cybernetic principles...