Ken Simons has posted to SSRN A New Framework for Understanding Consent in Tort Law. The abstract provides:
Intentional torts such as battery, assault, and false imprisonment identify wrongful conduct that violates a person’s rights by intentionally and unjustifiably intruding upon the person’s autonomy, thereby causing physical harm, emotional harm, or dignitary offense. But when that person actually consents to such conduct, consent vitiates the wrong and justifiably precludes liability.
Yet consent is controversial and divisive. In the context of sexual conduct, consent provokes especially intense contemporary debate. In other contexts, too, disagreement abounds about the type of consent that is legally effective. Although the concept of consent in criminal law has been extensively explored, few scholars have thoroughly analyzed consent in tort law.
This article demonstrates that controversies about the proper content and scope of consent rest in part on a failure to appreciate the distinct doctrinal categories of consent that preclude tort liability. By distinguishing these categories and demonstrating their significance and interrelationship, this article permits a clearer articulation of the criteria for resolving the controversies and renders the controversies much more tractable.
The article identifies three different categories of consent that are independently sufficient to preclude tort liability and also notes two additional categories that are highly problematic. The first category is actual consent, or willingness that an actor engages in otherwise tortious conduct. The second is apparent consent, which refers to cases in which the actor reasonably believes, perhaps mistakenly, that the plaintiff actually consents. The third category is hypothetical or presumed consent, a category that courts and scholars have rarely identified and explained, except in a narrow subcategory (the emergency doctrine). Here, even if the actor knows that the plaintiff does not actually consent (e.g., because the plaintiff is asleep or unconscious or merely surprised by the actor’s conduct), the actor is sometimes justified in proceeding, so long as the actor has no reason to believe that the plaintiff would not have actually consented if the actor had requested such consent. A fourth possible category is implied-in-law or constructive consent, under which courts (in rare cases) preclude tort liability even if the plaintiff expresses objection to the actor’s conduct. I argue that this category should be jettisoned entirely. And a fifth possible category, implied consent simpliciter, is too vague and indiscriminate to be useful.
This framework is applied to numerous concrete scenarios, many drawn from the recently adopted Restatement Third, Torts: Intentional Torts to Persons. A separate section applies the analysis to contemporary controversies about the proper scope of consent to sexual conduct, including the question whether the bright-line rules “NO means NO” and “only YES means YES” (or affirmative consent) should be adopted.
The article is both a descriptive account of the concepts that are explicit or implicit in tort cases, and a normative account of the categories of consent that are most useful and justifiable to employ, consistent with the role of consent in tort doctrine and theory.