Consent

Consent is the voluntary agreement of one person to another’s proposal or desire. While it is a common term, its meaning shifts in specific fields like law, medicine, research, and sexual consent. In these contexts, consent may not match everyday understanding.

For instance, someone with a mental disorder, low mental age, or below the legal age of sexual consent might willingly take part in a sexual act, yet that act may still lack legal consent under applicable law. United Nations agencies and sex education initiatives consider teaching consent as part of comprehensive sexuality education helpful. Common types of consent include implied consent, express consent, informed consent, and unanimous consent.

Express consent is clearly stated, either in writing (such as a contract), orally, or through a clear gesture like a nod. Non-written express consent without witnesses or recordings can be disputed if one party denies it. Implied consent is inferred from a person’s actions or the situation, including silence or inaction.

Examples include initiating sexual activity or the implied consent to physical contact in a hockey game or boxing match. Informed consent in medicine requires a person to clearly understand the facts, implications, and future consequences of an action. It also applies in social research, where participants affirm their understanding of the procedure, and in sex, where each person knows about any sexually transmitted infections or diseases they might encounter. Unanimous consent, or general consent, is given by all parties in a group, such as an association.

Substituted consent, or the substituted judgment doctrine, lets a decision maker choose what an incompetent person would have decided if competent. Advance consent, given ahead of time, is generally not valid except in certain cases like advance healthcare directives or commercial contracts, depending on jurisdiction. Consent can also be defined by substantive equality.

Internet and digital services

In international law, consent involves states, not individuals, and is crucial for any changes to rules to be legally binding. Some scholars suggest that consensus among states, rather than each state’s explicit consent, may make a rule obligatory. In digital services, end-user consent is key under regulations like the European General Data Protection Regulation (GDPR). The GDPR lists several legal bases for processing personal data, with consent being just one.

Since GDPR enforcement in 2018, online service providers have widely adopted consent mechanisms. However, valid consent under the GDPR must be freely given, specific, informed, and active. A 2020 study found that Big Tech companies—Google, Amazon, Facebook, Apple, and Microsoft—use dark patterns in these mechanisms, raising doubts about whether consent is lawful.

Tort

In tort law, consent can be express or implied. Participation in a contact sport usually implies consent to contact, as defined by the sport’s rules. A boxer cannot complain about being punched, as implied consent covers violence ordinarily and reasonably expected in the sport. Express consent appears in oral or written agreements, like a liability waiver that businesses require to acknowledge activity hazards, preventing tort lawsuits.

In English law, the principle volenti non fit injuria (“to a willing person, injury is not done”) applies to participants, spectators, and others willingly engaging in risky activities. Consent has also been used as a defense in accidental deaths during sexual bondage, sometimes called the “rough-sex defense,” but it is not effective in English law for serious injury or death. As a legal term, prior consent can be a defense against civil or criminal liability, arguing that actions occurred with the plaintiff’s or victim’s permission.

Medicine

In medicine, consent protects practitioners from liability for harm from procedures, with exceptions when a patient cannot give consent. A medical practitioner must explain significant risks of a procedure or medication.