Note: I was talking with Jay Wiseman, who is a prolific author of BDSM-related materials, and he offered up his latest handout, which is about consent as a matter of law. I thought I would share it here, so all of you could benefit from his efforts.
Here’s a brief summary on consent as a matter of law:
From a legal point of view, consent is: A mentally competent, informed, limitable, revocable, willingness to have a legally protected interest affected by the behavior of another person who might not have another legally defensible reason to affect that interest.
There are three basic parts to this rule. Let me unpack each one.
A mentally competent — the person has sufficient mental capacity to understand what’s going on. They are not so young, so intoxicated, so senile, or their level of consciousness so depressed that they can’t understand what’s involved. There are few hard and fast rules around this point (age of consent as expressed by a statute would be one exception) so every incident need to be evaluated on a case-by-case basis.
informed — the person has been given information that is sufficient and accurate enough to enable them to make a good decision. For instance, if a top were to tell a bottom that the top had “over a decade” of experience in using a single tail whip when in fact the top had less than an hour of experience in using it, then the bottom can’t make an informed decision and therefore their consent is invalid. (Note: there is an interesting doctrine, particularly in rape law, about the distinction between what’s called “fraud in the inducement” and what’s called “fraud in the factum.” As a general rule, fraud in the inducement is a defense to a rape accusation whereas fraud in the factum is not a defense. I’ve included at the end of this letter a link to a page that has a pretty good introductory article on this topic.)
limitable — consent can be limited. For example, one person might tell another, “You can touch me above the waist but not below the waist.” or, “You can come into my apartment, but only for ten minutes.” It’s a good idea to make sure this limitation is clearly communicated.
revocable — consent is generally revocable. For example, in the situations described just above, a person might say, “I’ve changed my mind. You can’t touch me anywhere,” or “Come to think of it, no. You can’t come in at all.” As with limited consent, it’s a very good idea to ensure that revocation of consent is clearly and unambiguously communicated.
willingness — the person’s consent was not obtained by duress. This generally means that consent was not obtained by a credible threat of immediate physical harm to the person or to someone they are close to such as a spouse or child. Note that the threat generally needs to be of immediate physical harm. For example, if a burglar were to say to a woman who’s house he has broken into, while waving a large knife, “Have sex with me or I’ll kill your baby.” and the baby is right there in a crib in her bedroom, then she would be acting under duress and her consent would be invalid. On the other hand, let’s say that Boss says to Employee, “Have sex with me or you’re fired.” That generally would not be sufficient to constitute duress as a matter of law. (A sexual harassment case would, of course, be a different matter.)
to have a legally protected interest… What this means is that if one of your legally protected interests is violated then the offender could end up in criminal and/or civil court. You have a legally protected interest in your person (battery, false imprisonment), your peace of mind (assault, intentional infliction of emotional distress), your property (theft, vandalism, trespassing), your privacy (invasion of privacy), and your reputation (defamation). This is not a complete list of legally protected interests.
affected by the behavior of another person who might not have another legally defensible reason to affect that interest. Consent is largely about human behavior. If your car is damaged by an act of God, then your consent hasn’t been violated. If your car is damaged by your crazoid ex, then your consent has been violated. Also, if the cops show up at your house with a warrant for your arrest, then they can take you into custody without your consent and not face accusations of assault, battery, false imprisonment, etc.
Types of Consent
There are five ways of expressing consent, which consist of expressly stated consent and four types of implied consent.
Expressly stated consent is consent communicated through words, spoken or written. An example would be when a hospital patient signs a “consent for surgery” form.
Consent can be implied through behavior, for example if Person A says to Person B, “I’d like to tie you up.” and Person B smiles and puts their hands behind their back, then it would be reasonable for Person A to believe that Person B had consented to being bound. (Hopefully, unless they already know each other pretty well and they negotiate more than this before proceeding further but you get the idea.)
Consent can be implied as a matter of law. This usually involves giving first aid to someone who is unconscious, or whose brain is not functioning adequately due to intoxicants, head injury, diabetes, and so forth. These people can be treated even if they do not consent without the rescuers risking being charged with battery or other offenses because the law presumes that the victim would consent to being given such aid if their brain was working properly.
Consent can be implied by social custom. For example, tapping someone on the forearm to ask what time it is is not a battery under our current social customs. Obviously, how far such touching can go varies in different societies.
Consent can be implied by failure to object where a reasonable person would object. As I mentioned, this is the old “never ask a girl if you can kiss her” rule. This rule is becoming more unpopular with time but is still the law in most jurisdictions.
So there you have it. I hope you find it useful.