Consent

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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.

Contents

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

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). [5] [6] 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. [5] According to the GDPR, end-users' consent should be valid, freely given, specific, informed and active. [5] 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. [5]

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. [7] 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. [8] 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.[ citation needed ]

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.[ citation needed ]

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. [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. [9] If a practitioner does not explain a material risk that subsequently eventuates, then that is considered negligent. [10] These material risks include the loss of chance of a better result if a more experienced surgeon had performed the procedure. [11] In the UK, a Supreme Court judgment [12] 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. [13]

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. [14] 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. [15] : 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. [15] : 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

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. [16] Consent can also be revoked at any moment. [17] [ better source needed ]

Sexual consent plays an important role in defining what sexual assault is, since sexual activity without consent by all parties is rape. [18] [19] [ better source needed ] 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". [20] 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. [21]

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." [17] Hickman and Muehlenhard state that consent should be "free verbal or nonverbal communication of a feeling of willingness' to engage in sexual activity." [22] 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. [18]

Some individuals are unable to give consent. 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. [23]

Within literature,[ vague ] definitions surrounding consent and how it should be communicated have been contradictory, limited or without consensus. [18] [19] 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. [24] 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. [25] 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. [26]

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". [27] In U.S., California-Berkeley University has implemented affirmative and continual consent in education and in the school's policies. [28] 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. [29]

Affirmative consent (enthusiastic yes) is when both parties agree to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures. [30] It involves communication and the active participation of people involved. This is the approach endorsed by colleges and universities in the U.S., [31] which 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). [30] 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 [30]

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. [30] "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." [30]

See also

Related Research Articles

<span class="mw-page-title-main">Age of consent</span> Minimum age for sexual activities

The age of consent is the age at which a person is considered to be legally competent to consent to sexual acts. Consequently, an adult who engages in sexual activity with a person younger than the age of consent is unable to legally claim that the sexual activity was consensual, and such sexual activity may be considered child sexual abuse or statutory rape. The person below the minimum age is considered the victim, and their sex partner the offender, although some jurisdictions provide exceptions through "Romeo and Juliet laws" if one or both participants are underage, and are close in age.

<span class="mw-page-title-main">Human sexual activity</span> Manner in which humans engage sexually

Human sexual activity, human sexual practice or human sexual behaviour is the manner in which humans experience and express their sexuality. People engage in a variety of sexual acts, ranging from activities done alone to acts with another person in varying patterns of frequency, for a wide variety of reasons. Sexual activity usually results in sexual arousal and physiological changes in the aroused person, some of which are pronounced while others are more subtle. Sexual activity may also include conduct and activities which are intended to arouse the sexual interest of another or enhance the sex life of another, such as strategies to find or attract partners, or personal interactions between individuals. Sexual activity may follow sexual arousal.

<span class="mw-page-title-main">Informed consent</span> Process for obtaining subject approval prior to treatment or research

Informed consent is a principle in medical ethics and medical law and media studies, that a patient must have sufficient information and understanding before making decisions about their medical care. Pertinent information may include risks and benefits of treatments, alternative treatments, the patient's role in treatment, and their right to refuse treatment. In most systems, healthcare providers have a legal and ethical responsibility to ensure that a patient's consent is informed. This principle applies more broadly than healthcare intervention, for example to conduct research and to disclose a person's medical information.

Sex and the law deals with the regulation by law of human sexual activity. Sex laws vary from one place or jurisdiction to another, and have varied over time. Unlawful sexual acts are called sex crimes.

<span class="mw-page-title-main">Sadomasochism</span> Giving or receiving of pleasure from acts involving the receipt or infliction of pain or humiliation

Sadism and masochism, known collectively as sadomasochism, are the derivation of pleasure from acts of respectively inflicting or receiving pain or humiliation. Practitioners of sadomasochism may seek sexual pleasure from their acts. While the terms sadist and masochist refer respectively to one who enjoys giving and receiving pain, some practitioners of sadomasochism may switch between activity and passivity.

Confidentiality involves a set of rules or a promise usually executed through confidentiality agreements that limits the access to or places restrictions on distribution of certain types of information.

An institutional review board (IRB), also known as an independent ethics committee (IEC), ethical review board (ERB), or research ethics board (REB), is a committee at an institution that applies research ethics by reviewing the methods proposed for research involving human subjects, to ensure that the projects are ethical. The main goal of IRB reviews is to ensure that study participants are not harmed. Such boards are formally designated to approve, monitor, and review biomedical and behavioral research involving humans, and they are legally required in some countries under certain specified circumstances. Most countries use some form of IRB to safeguard ethical conduct of research so that it complies with national and international norms, regulations or codes.

Sexual ethics is a branch of philosophy that considers the ethics or morality or otherwise in sexual behavior. Sexual ethics seeks to understand, evaluate and critique interpersonal relationships and sexual activities from a social, cultural, and philosophical perspective. Some people consider aspects of human sexuality, such as gender identification and sexual orientation, as well as consent, sexual relations and procreation, as giving rise to issues of sexual ethics.

In criminal law, consent may be used as an excuse and prevent the defendant from incurring liability for what was done.

<span class="mw-page-title-main">Rape</span> Type of sexual assault usually involving sexual intercourse without consent

Rape is a type of sexual assault involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or against a person who is incapable of giving valid consent, such as one who is unconscious, incapacitated, has an intellectual disability, or is below the legal age of consent. The term rape is sometimes used interchangeably with the term sexual assault.

Laws regarding incest vary considerably between jurisdictions, and depend on the type of sexual activity and the nature of the family relationship of the parties involved, as well as the age and sex of the parties. Besides legal prohibitions, at least some forms of incest are also socially taboo or frowned upon in most cultures around the world.

<span class="mw-page-title-main">Implied consent</span> Legal concept in United States law

Implied consent is consent which is not expressly granted by a person, but rather implicitly granted by a person's actions and the facts and circumstances of a particular situation. For example, if a person is unconscious as a result of injuries sustained during a traffic collision, medical treatment may be provided to that person, despite the unconscious person being unable to expressly grant consent for that treatment.

In common law jurisdictions, statutory rape is nonforcible sexual activity in which one of the individuals is below the age of consent. Although it usually refers to adults engaging in sexual contact with minors under the age of consent, it is a generic term, and very few jurisdictions use the actual term statutory rape in the language of statutes. In statutory rape, overt force or threat is usually not present. Statutory rape laws presume coercion because a minor or mentally disabled adult is legally incapable of giving consent to the act.

Sexual consent is consent to engage in sexual activity. In many jurisdictions, sexual activity without consent is considered rape or other sexual assault.

<i>Yes Means Yes</i> 2008 book by Jaclyn Friedman and Jessica Valenti

Yes Means Yes: Visions of Female Sexual Power and a World Without Rape is a feminist non-fiction book edited by Jaclyn Friedman and Jessica Valenti, published in 2008. The book was one of Publishers Weekly's 99 Best Books of 2009 and inspired a sexual education non-credit course at Colgate University. The title refers to the popular, "Yes Means Yes" affirmative consent campaign against date rape, which calls for sexual participants to obtain a declaration of consent, "yes", to each sexual act or escalation.

<span class="mw-page-title-main">Legality of BDSM</span> Laws on BDSM

Criminalization of consensual BDSM practices is usually not with explicit reference to BDSM, but results from the fact that such behavior as spanking or cuffing someone could be considered a breach of personal rights, which in principle constitutes a criminal offense. In Germany, Netherlands, Japan and Scandinavia, such behavior is legal in principle. In Austria the legal status is not clear, while in Switzerland some BDSM practices can be considered criminal.

Various organizations have created guidelines for human subject research for various kinds of research involving human subjects and for various situations.

Privacy for research participants is a concept in research ethics which states that a person in human subject research has a right to privacy when participating in research. Some typical scenarios this would apply to include, or example, a surveyor doing social research conducts an interview with a participant, or a medical researcher in a clinical trial asks for a blood sample from a participant to see if there is a relationship between something which can be measured in blood and a person's health. In both cases, the ideal outcome is that any participant can join the study and neither the researcher nor the study design nor the publication of the study results would ever identify any participant in the study. Thus, the privacy rights of these individuals can be preserved.

<span class="mw-page-title-main">Intersex human rights reports</span>

Intersex people are born with sex characteristics, such as chromosomes, gonads, hormones, or genitals that, according to the UN Office of the High Commissioner for Human Rights, "do not fit the typical definitions for male or female bodies". Such variations may involve genital ambiguity, and combinations of chromosomal genotype and sexual phenotype other than XY-male and XX-female.

Sexual consent plays an important role in laws regarding rape, sexual assault and other forms of sexual violence. In a court of law, whether or not the alleged victim had freely given consent, and whether or not they were deemed to be capable of giving consent, can determine whether the alleged perpetrator is guilty of rape, sexual assault or some other form of sexual misconduct.

References

  1. ↑ "consent, n." www.oed.com (From the second edition (1989) ed.). Oxford English Dictionary. Archived from the original on 2022-05-07. 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. 1 2 Garner, Bryan (2011). Black's Law Dictionary. West Publishing Co. p. 726.
  4. ↑ Christoph Stumpf, "Consent and the Ethics of International Law Revisiting Grotius’s System of States in a Secular Setting." Grotiana 41.1 (2020): 163-176.
  5. 1 2 3 4 Human, Soheil; Cech, Florian (2021). "A Human-Centric Perspective on Digital Consenting: The Case of GAFAM" (PDF). In Zimmermann, Alfred; Howlett, Robert J.; Jain, Lakhmi C. (eds.). Human Centred Intelligent Systems. Smart Innovation, Systems and Technologies. Vol. 189. Singapore: Springer. pp. 139–159. doi:10.1007/978-981-15-5784-2_12. ISBN   978-981-15-5784-2. S2CID   214699040.
  6. ↑ Skiera, Bernd (2022). The impact of the GDPR on the online advertising market. Klaus Matthias Miller, Yuxi Jin, Lennart Kraft, René Laub, Julia Schmitt. Frankfurt am Main. ISBN   978-3-9824173-0-1. OCLC   1303894344.{{cite book}}: CS1 maint: location missing publisher (link)
  7. ↑ 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."
  8. ↑ Pallante v Stadiums Pty Ltd (No 1) [1976] VicRp 29 , [1976] VR 331 at 339, Supreme Court (Vic,Australia).
  9. ↑ Rogers v Whitaker [1992] HCA 58 , (1992) 175 CLR 479, High Court (Australia).
  10. ↑ Chester v Afshar [2004] UKHL 41 , [2005] 1 AC 134, House of Lords (UK).
  11. ↑ Chappel v Hart [1998] HCA 55 , (1998) 195 CLR 232, High Court (Australia).
  12. ↑ Montgomery v Lanarkshire Health Board [2015] UKSC 11 , [2015] AC 1430, Supreme Court (UK).
  13. ↑ "Supreme Court decision changes doctor-patient relationship forever - Balfour+Manson". www.balfour-manson.co.uk. Archived from the original on 2018-01-18. Retrieved 2018-01-18.
  14. ↑ Protection of Human Subjects, 45 C.F.R. § 46 (2020). https://www.ecfr.gov/cgi-bin/text-idx?SID=58d96a013d3e34979d7d98ede819e917&mc=true&node=pt45.1.46&rgn=div5
  15. 1 2 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.
  16. ↑ Criminal Code, Canadian (2015). "Canadian Criminal Code".{{cite journal}}: Cite journal requires |journal= (help) Retrieved March 13, 2015.
  17. 1 2 Hall, David S. (10 August 1998). "Consent for Sexual Behavior in a College Student Population". Electronic Journal of Human Sexuality. 1.
  18. 1 2 3 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.
  19. 1 2 Beres. A, Melanie (18 January 2007). "'Spontaneous' Sexual Consent: An Analysis of Sexual Consent Literature". Feminism & Psychology. 17 (93): 93. doi:10.1177/0959353507072914. S2CID   143271570.
  20. ↑ Pineau, Lois (1989). "Date Rape: A Feminist Analysis". Law and Philosophy. 8 (217): 217–243. doi:10.1007/BF00160012. S2CID   144671456.
  21. ↑ 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
  22. ↑ 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.
  23. ↑ 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.
  24. ↑ 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.
  25. ↑ 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. S2CID   145292798.
  26. ↑ 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.
  27. ↑ Rawlinson, Kevin (9 March 2015). "Plans for sexual consent lessons in schools 'do not go far enough'".{{cite journal}}: Cite journal requires |journal= (help) Retrieved March 13, 2015.
  28. ↑ Grinberg, E. (29 September 2014). "Enthusiastic yes in sex consent education".{{cite journal}}: Cite journal requires |journal= (help) Retrieved March 13, 2015.
  29. ↑ Rushowy, Kristin (25 February 2015). "In Ontario sex ed, consent the hot issue". The Toronto Star. Retrieved March 10, 2015.
  30. 1 2 3 4 5 Grinberg, E. (29 September 2014). "Enthusiastic yes in sex consent education".{{cite journal}}: Cite journal requires |journal= (help) Retrieved March 10, 2015.
  31. ↑ "Opinion | Affirmative consent: A primer". Washington Post. ISSN   0190-8286 . Retrieved 2023-05-03.
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