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From a legal perspective, what is the definition of "consent?"

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user7207435 | eNotes Newbie

Posted August 29, 2013 at 3:38 PM via web

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From a legal perspective, what is the definition of "consent?"

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kipling2448 | (Level 1) Educator Emeritus

Posted August 29, 2013 at 4:07 PM (Answer #1)

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For legal purposes, the definition of “consent” is as follows:

“A concurrence of wills.  Express consent is that directly given, either lira voce or in writing.  Implied consent is that manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption that the consent has been given.” [Blacks’s Law Dictionary, www.thelawdictionary.org/consent/

Now, that is a legal definition of “consent” as the word is understood in criminal or civil proceedings.  In practice, especially in matters of sexual assault but also in routine civil matters involving discussion or negotiations between two or more individuals, the concept of consent, absent a signed contract, can be difficult to determine.  Within the context of allegations of rape, especially so-called “date rape,” the question of informed consent can be the pillar upon which both plaintiff and defendant rest their respective cases.  As noted, consent as demonstrated through a document like a contract prepared by licensed attorneys can be relatively easy to prove, assuming there are no definitional disputes.  In cases involving suggestions of oral consent, such as may be the case in rape cases, definitive determinations of consent can be extremely difficult to ascertain, as deliberations inevitably devolve into “he said/she said” arguments regarding consent.  In cases involving juveniles or adults with clinically-established mental diminishment, the concept of “informed consent” comes into play with regard to whether the “victim” was capable of fully understanding that to which she or he was agreeing.  A defense attorney attempting to argue that a juvenile or mentally diminished adult victim understood to what he or she was agreeing has to prove that the victim gave informed consent, or agreed to an act with a full understanding of what the act entailed and what its ramifications could be, before the act was committed.

In short, “consent” refers to an individual’s agreement to perform an act with an understanding of what that act involved and what its ramifications could be.

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