Consent as a term of jurisprudence is 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 were taken with the plaintiff or "victim's" consent and permission.
For cases such as rape that involve the criminal law, see consent (criminal).
Tort
For example, if the plaintiff
signs a
document stating that he or she is aware of the hazards of
paintball, and that individual is then injured playing the game, the express consent given in advance may excuse the person who shot the plaintiff. 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.
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.
See also
References