View source for Consent

{{Short description|Voluntary agreement to another's proposal}}
{{Other uses|Consent (disambiguation)}}
{{Tort law|defenses}}

{{Criminal law}}

'''Consent''' occurs when one person voluntarily agrees to the proposal or desires of another.<ref>{{Cite web |title=consent, n. |url=https://www.oed.com/oed2/00047775#:~:text=1.,%3B%20compliance%2C%20concurrence%2C%20permission. |access-date=2016-03-24 |website=www.oed.com |publisher=Oxford English Dictionary |edition=From the second edition (1989) |archive-date=2022-05-07 |archive-url=https://web.archive.org/web/20220507204310/https://www.oed.com/oed2/00047775#:~:text=1.,%3B%20compliance%2C%20concurrence%2C%20permission. |url-status=dead }}</ref> It is a term of common speech, with specific definitions used in such fields as the [[law]], [[medicine]], [[research]], and [[sexual consent]]. Consent as understood in specific contexts may differ from its everyday meaning. For example, a person with a [[mental disorder]], a low [[mental age]], or under the legal [[age of sexual consent]] may willingly engage in a sexual act that still fails to meet the legal threshold for consent as defined by applicable law.

[[United Nations]] agencies and initiatives in [[sex education]] programs believe that teaching the topic of consent as part of a comprehensive sexuality education is beneficial.<ref>{{Cite book|url=http://unesdoc.unesco.org/images/0026/002607/260770e.pdf|title=International technical guidance on sexuality education: An evidence-informed approach|publisher=UNESCO|year=2018|isbn=978-92-3-100259-5|location=Paris|pages=56}}</ref> Types of consent include [[implied consent]], express consent, [[informed consent]] and [[unanimous consent]].

==Types==
* An express consent is one that is unmistakably stated, rather than implied. It may be given in [[writing]], e.g. [[contract]],<ref name="x951">{{cite journal | title=Contracts is Not Promise; Contract is Consent | journal=Suffolk University Law Review | date=8 March 2021 | volume=45 | page=647 | url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/sufflr45&div=34&id=&page= | access-date=11 August 2024 | last1=Barnett | first1=Randy E. }}</ref> by [[spoken words|speech]] (orally), or [[nonverbal communication|non-verbally]], e.g. by a clear gesture such as a nod. Non-written express consent not evidenced by witnesses or an audio or video recording may be disputed if a [[Party (law)|party]] denies that it was given.
* [[Implied consent]] is consent inferred from a person's actions and the facts and circumstances of a particular situation (or in some cases, by a person's silence or inaction). Examples include unambiguously soliciting or initiating sexual activity or the implied consent to physical contact by participants in a hockey game or being assaulted in a boxing match. 
* [[Informed consent]] in medicine is consent given by a person who has a clear appreciation and understanding of the facts, implications, and future consequences of an action. The term is also used in other contexts, such as in social scientific research, when participants are asked to affirm that they understand the research procedure and consent to it, or in sex, where informed consent means each person engaging in sexual activity is aware of any positive statuses (for sexually transmitted infections and/or diseases) they might expose themselves to.
* [[Unanimous consent]], or general consent, by a group of several parties (e.g., an [[Voluntary association|association]]) is consent given by all parties.
* Substituted consent, or the substituted judgment doctrine, allows a decision maker to attempt to establish the decision an incompetent person would have made if they were competent.<ref name="sub">{{cite book |last=Garner |first=Bryan |date=2011 |title=Black's Law Dictionary |publisher=West Publishing Co. |page=726 }}</ref>
* Advance consent, where consent is given in advance, is generally considered not valid<ref name="r449"/> with certain exceptions depending on [[jurisdiction]] for [[advance healthcare directive]]s,<ref name="b306">{{cite journal | last1=Oliver | first1=Jill | last2=Petropanagos | first2=Angel | last3=Chidwick | first3=Paula | title=Final consent, advance consent and alleviating suffering in frail adults requesting MAiD | journal=Canadian Medical Association Journal | volume=194 | issue=18 | date=9 May 2022 | issn=0820-3946 | pmid=35534025 | pmc=9259404 | doi=10.1503/cmaj.81239 | pages=E652}}</ref> commercial [[contract]]s,<ref name="n697">{{cite journal | title= Choice, Consent, and Cycling: The Hidden Limitations of Consent | journal=Mich. L. Rev. | url=https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/mlr104&section=44 | access-date=21 July 2024}}</ref> and other.<ref name="h877">{{cite journal | last=Koshan | first=Jennifer | title=Marriage and Advance Consent to Sex: A Feminist Judgment in <Em>R v. JA</Em> | journal=Oñati Socio-Legal Series | date=28 December 2016 | ssrn=2891024 | url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2891024 | access-date=21 July 2024}}</ref><ref name="g112">{{cite journal | title=Sexual Advance Directives | journal=Ala. L. Rev. | date=8 March 2021 | volume=68 | page=1 | url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/bamalr68&div=5&id=&page= | access-date=21 July 2024 | last1=Boni-Saenz | first1=Alexander A. }}</ref><ref name="m597">{{cite journal | last1=Grigorovich | first1=Alisa | last2=Kontos | first2=Pia | last3=Heesters | first3=Ann | last4=Martin | first4=Lori Schindel | last5=Gray | first5=Julia | last6=Tamblyn Watts | first6=Laura | title=Dementia and sexuality in long-term care: Incompatible bedfellows? | journal=Dementia | volume=21 | issue=4 | date=2022 | issn=1471-3012 | pmid=34904897 | pmc=9189437 | doi=10.1177/14713012211056253 | pages=1077–1097}}</ref>
* Consent can be defined according to [[substantive equality]].<ref name="r449">{{cite journal | last=Cunliffe | first=Emma | title=Sexual Assault Cases in the Supreme Court of Canada: Losing Sight of Substantive Equality? | journal=Supreme Court Law Review | date=2012 | ssrn=2111652 | url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2111652 | access-date=21 July 2024}}</ref> 
* In international law, consent involves states, not individuals. Consent is a crucial principle of international law that necessitates the agreement of all relevant parties for any changes in rules to be legally binding. However, some legal scholars propose that a consensus among states, rather than the explicit consent of each state, may be the standard by which a rule is considered obligatory and enforceable.<ref>Christoph Stumpf, "Consent and the Ethics of International Law Revisiting Grotius's System of States in a Secular Setting." ''Grotiana'' 41.1 (2020): 163-176.</ref>

== Internet and digital services ==
The concept of [[End user|end-user]] given consent plays an important role in digital regulations such as the European [[General Data Protection Regulation]] (GDPR).<ref name=":1">{{Cite book|last1=Human|first1=Soheil|last2=Cech|first2=Florian|title=Human Centred Intelligent Systems |chapter=A Human-Centric Perspective on Digital Consenting: The Case of GAFAM |date=2021|editor-last=Zimmermann|editor-first=Alfred|editor2-last=Howlett|editor2-first=Robert J.|editor3-last=Jain|editor3-first=Lakhmi C.|series=Smart Innovation, Systems and Technologies|volume=189|location=Singapore|publisher=Springer|pages=139–159|doi=10.1007/978-981-15-5784-2_12|isbn=978-981-15-5784-2|s2cid=214699040|chapter-url=https://epub.wu.ac.at/7523/1/HCIS2020_A%20Human-centric%20Perspective%20on%20Digital%20Consenting_The%20Case%20of%20GAFAM_Soheil%20Human_Florian%20Cech.pdf}}</ref><ref>{{Cite book |last=Skiera |first=Bernd |url=https://www.worldcat.org/oclc/1303894344 |title=The impact of the GDPR on the online advertising market |date=2022 |others=Klaus Matthias Miller, Yuxi Jin, Lennart Kraft, René Laub, Julia Schmitt |isbn=978-3-9824173-0-1 |location=Frankfurt am Main |oclc=1303894344}}</ref> The GDPR (Article 6) defines a set of different legal bases for lawful processing of personal data. End-users' consent is only one of these possible bases. However, as a result of the GDPR enforcement (in 2018) and other legal obligations, data controllers (online service providers) have widely developed consent-obtaining mechanisms in recent years.<ref name=":1" /> According to the GDPR, end-users' consent should be ''valid'', ''freely given'', ''specific'', ''informed'' and ''active''.''<ref name=":1" />'' But the lack of enforceability regarding obtaining lawful consents has been a challenge in the digital world. As an example, a 2020 study, showed that the [[Big Tech]], i.e. [[Google]], [[Amazon (company)|Amazon]], [[Facebook]], [[Apple Inc.|Apple]], and [[Microsoft]] (GAFAM), use [[dark pattern]]s in their consent obtaining mechanisms, which raises doubts regarding the lawfulness of the obtained consent.<ref name=":1" />

==Tort==
{{Main|Tort}}
Consent can be either expressed or implied. For example, participation in a [[contact sport]] usually implies consent to a degree of contact with other participants, implicitly agreed and often defined by the rules of the sport.<ref>[http://news.bbc.co.uk/sport1/hi/rugby_union/rules_and_equipment/4200680.stm  Example of permitted and regulated contact in sport - BBC Sport: Rugby Union: "... you can tackle an opponent in order to get the ball, as long as you stay within the rules."]</ref> Another specific example is where a [[Boxer (boxing)|boxer]] cannot complain of being punched on the nose by an opponent; implied consent will be valid where the violence is '''ordinarily and reasonably to be contemplated as incidental to the sport in question'''.<ref>{{cite AustLII|VicRp|29|1976|litigants=Pallante v Stadiums Pty Ltd (No 1) |parallelcite=[1976] [[Victorian Reports|VR]] 331 at 339 |courtname=auto}}.</ref> Express consent exists when there is oral or written agreement, particularly in a contract. For example, businesses may require that persons [[Digital signature|sign]] a [[waiver]] (called a [[liability waiver]]) acknowledging and accepting the hazards of an activity. This proves express consent, and prevents the person from filing a [[tort]] lawsuit for unauthorised actions.{{citation needed|date=August 2019}}

In [[English law]], the principle of ''[[volenti non fit injuria]]'' ([[Latin]]: "to a willing person, injury is not done") 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 [[Death during consensual sex|accidental deaths during sex]], which occur during [[Bondage (BDSM)|sexual bondage]]. ''[[Time (magazine)|Time]]'' (May 23, 1988) referred to this latter example, as the "''rough-sex defense''". It is not effective in English law in cases of serious injury or death.

As a term of jurisprudence prior provision of consent signifies a possible defence (an [[excuse]] or justification) against civil or criminal liability. [[Defendant]]s who use this [[defense (legal)|defense]] are arguing that they should not be held [[legal liability|liable]] for a tort or a [[crime]], since the [[action (philosophy)|actions]] in question took place with the plaintiff or "victim's" prior consent and permission.{{Citation needed|date=May 2009}}

==Medicine==
{{See also| Informed consent}}
In medical law, consent is important to protect a medical practitioner from liability for harm to a patient arising from a procedure. There are [[Doe ex. rel. Tarlow v. District of Columbia|exemptions]], such as when the patient is unable to give consent.<ref name="sub"/>

Also, a medical practitioner must explain the significant risks of a procedure or medication (those that might change the patient's mind about whether or not to proceed with the treatment) before the patient can give a binding consent. This was explored in Australia in ''Rogers v Whitaker''.<ref>{{cite AustLII|HCA|58|1992|litigants=Rogers v Whitaker |parallelcite=(1992) 175 [[Commonwealth Law Reports|CLR]] 479 |courtname=auto}}.</ref> If a practitioner does not explain a material risk that subsequently eventuates, then that is considered negligent.<ref>{{cite BAILII |litigants=[[Chester v Afshar]] |year=2004 |court=UKHL |num=41 |parallelcite= [2005] 1 [[Appeal Cases Law Reports|AC]] 134 |courtname=auto}}.</ref> These material risks include the loss of chance of a better result if a more experienced surgeon had performed the procedure.<ref>{{cite AustLII|HCA|55|1998|litigants=Chappel v Hart |parallelcite=(1998) 195 [[Commonwealth Law Reports|CLR]] 232 |courtname=auto}}.</ref>
In the [[UK]], a [[Supreme Court of the United Kingdom|Supreme Court]] judgment<ref>{{cite BAILII |litigants=Montgomery v Lanarkshire Health Board |courtname=auto|juris=Scotland |court=UKSC |year=2015 |num=11 |parallelcite=[2015] [[Appeal Cases Law Reports|AC]] 1430}}.</ref> modernized the law on consent and introduced a patient-focused test to UK law: allowing the patient rather than the medical professionals to decide upon the level of risk they wish to take in terms of a particular course of action, given all the information available.  This change reflects the Guidance of the General Medical Council on the requirement to consent patients, and removes the rule of medical paternalism.<ref>{{cite web|title=Supreme Court decision changes doctor-patient relationship forever - Balfour+Manson|url=https://www.balfour-manson.co.uk/news-plus-events/news/2015/03/mothers-landmark-court-win-changes-doctor-patient-relationship-forever/|website=www.balfour-manson.co.uk|access-date=2018-01-18|archive-date=2018-01-18|archive-url=https://web.archive.org/web/20180118182105/https://www.balfour-manson.co.uk/news-plus-events/news/2015/03/mothers-landmark-court-win-changes-doctor-patient-relationship-forever/|url-status=dead}}</ref>

== Social science research ==
[[Social science|Social scientists]] are generally required to obtain informed consent from [[research participant]]s before asking interview questions or conducting an experiment. Federal law governs social science research that involves [[Human subject research|human subjects]], and tasks [[institutional review board]]s (IRBs) at universities, federal or state agencies, and tribal organizations to oversee social science research that involves human subjects and to make decisions about whether or not informed consent is necessary for a social scientific study to go forward.<ref>Protection of Human Subjects, 45 C.F.R. § 46 (2020). https://www.ecfr.gov/cgi-bin/text-idx?SID=58d96a013d3e34979d7d98ede819e917&mc=true&node=pt45.1.46&rgn=div5</ref> Informed consent in this context generally means explaining the study's purpose to research participants and obtaining a signed or verbal affirmation that the study participants understand the procedures to be used and to consent to participate in the study.<ref name=":0" />{{Rp|51–55}}

Some types of social scientific research, such as psychological experiments, may use deception as part of the study; in these cases, researchers may not fully describe the procedures to participants, and thus participants are not fully informed. However, researchers are required to debrief participants immediately after the experiment is concluded. Certain populations are considered to be vulnerable, and in addition to informed consent, special protections must be made available to them. These include persons who are incarcerated, pregnant women, persons with disabilities, and persons who have a mental disability. Children are considered unable to provide informed consent.<ref name=":0">{{Cite book|title=Making sense of the social world: methods of investigation|last1=Chambliss|first1=Daniel F.|last2=Schutt|first2=Russell K.|publisher=Sage|year=2016|isbn=9781483380612|edition=Fifth|location=Los Angeles|oclc=890179806}}</ref>{{Rp|51–55}}

==Planning law==
{{unreferenced section|date=August 2019}}
Some countries, such as [[New Zealand]] with its [[Resource Management Act 1991|Resource Management Act]] and its Building Act, use the term "consent" for the legal process that provide planning permission for developments like subdivisions, bridges or buildings. Achieving permission results in getting "Resource consent" or "Building consent".

==Sexual activity==

{{See also| Sexual consent|Rape#Consent|Sexual consent in law}}
{{undue weight section|date=August 2019}}
In Canada, "consent means [...] the voluntary agreement of the complainant to engage in sexual activity" without abuse or exploitation of "trust, power or authority", coercion or threats.<ref name=canadiancriminalcode>{{cite journal|journal= Canadian Criminal Code|url=http://laws-lois.justice.gc.ca/eng/acts/C-46/page-137.html#docCont|title=Canadian Criminal Code|date=2015|archive-url=https://web.archive.org/web/20150403171628/http://laws-lois.justice.gc.ca/eng/acts/C-46/page-137.html|archive-date=3 April 2015|url-status=dead}} Retrieved March 13, 2015.</ref> Consent can also be revoked at any moment.<ref name=Hall>{{cite journal|last=Hall|first=David S.|title=Consent for Sexual Behavior in a College Student Population|journal=Electronic Journal of Human Sexuality|date=10 August 1998|volume=1}}</ref><ref>{{Cite web |title=What Is Consent? {{!}} CARE Program |url=https://care.ucr.edu/education/what-is-consent |access-date=2025-04-14 |website=care.ucr.edu |language=en}}</ref> The [[Supreme Court of British Columbia]] ruled that badgering alone, followed by an agreement, does not meet the threshold of coercion to vitiate consent.<ref name=BCcourt>{{cite journal|journal=Supreme Court of British Columbia Justice Giaschi|first=Christopher|last=Giaschi|url=https://www.canlii.org/en/bc/bcsc/doc/2023/2023bcsc674/2023bcsc674.html|title=R. v. O.V.O|date=6 February 2023|quote=She gave no particulars of how he forced, coerced, or manipulated her. At best, her evidence was that the defendant badgered her to engage in sexual activity and that she eventually relented, gave into, or agreed to such requests.}}</ref>

Sexual consent plays an important role in defining what sexual assault is, since [[Human sexual activity|sexual activity]] without consent by all parties is [[rape]].<ref name=Roffee/><ref name=Beres>{{cite journal|last=Beres. A|first=Melanie|title='Spontaneous' Sexual Consent: An Analysis of Sexual Consent Literature|journal=Feminism & Psychology|date=18 January 2007|volume=17|issue=93|page=93|doi=10.1177/0959353507072914|s2cid=143271570}}<!—|access-date=28 October 2013–></ref>{{better source needed|date=August 2019}} In the late 1980s, academic Lois Pineau argued that we must move towards a more communicative model of sexuality so that consent becomes more explicit and clear, objective and layered, with a more comprehensive model than "no means no" or "yes means yes".<ref name=PINEAU>{{cite journal|last=Pineau|first=Lois|title=Date Rape: A Feminist Analysis|journal=Law and Philosophy|year=1989|volume=8|issue=217|pages=217–243|doi=10.1007/BF00160012|s2cid=144671456}}</ref> Many universities have instituted campaigns about consent. Creative campaigns with attention-grabbing slogans and images that market consent can be effective tools to raise awareness of campus sexual assault and related issues.<ref name="ReferenceA">Thomas KA, Sorenson SB, Joshi M. "Consent is good, joyous, sexy": A banner campaign to market consent to college students. Journal of American College Health. 2016; 64(8):639-650</ref>

Since the late 1990s, new models of sexual consent have been proposed. Specifically, the development of "yes means yes" and affirmative models, such as Hall's definition: "the voluntary approval of what is done or proposed by another; permission; agreement in opinion or sentiment."<ref name=Hall/> Hickman and Muehlenhard state that consent should be "free verbal or nonverbal communication of a feeling of willingness' to engage in sexual activity."<ref>Hickman, S.E. and Muehlenhard, C.L. (1999) '"By the Semi-mystical Appearance of a Condom": How Young Women and Men Communicate Sexual Consent in Heterosexual Situations', The Journal of Sex Research 36: 258–72.</ref> Affirmative consent may still be limited since the underlying, individual circumstances surrounding the consent cannot always be acknowledged in the "yes means yes", or in the "no means no", model.<ref name=Roffee>{{cite book|title=Roffee James A., 'When Yes Actually Means Yes: Confusing Messages and Criminalising Consent' in Rape Justice: Beyond the Criminal Law eds. Powell A., Henry N., and Flynn A., Palgrave, 2015|pages=72–91|doi=10.1057/9781137476159_5|chapter = When Yes Actually Means Yes|year = 2015|last1 = Roffee|first1 = James A.|isbn=978-1-349-57052-2}}</ref>

Some individuals are unable to give consent. [[Minor (law)|Minors]] below a certain age, the [[Age of consent|age of sexual consent]] in that [[jurisdiction]], are deemed not able to give valid consent by law to sexual acts. Likewise, persons with [[Alzheimer's disease]] or similar disabilities may be unable to give [[Consent (criminal law)|legal consent]] to sexual relations even with their spouse.<ref name=NYT42215>{{cite news|author1=Pam Belluck|title=Iowa Man Found Not Guilty of Sexually Abusing Wife With Alzheimer's|url=https://www.nytimes.com/2015/04/23/health/iowa-man-found-not-guilty-of-sexually-abusing-wife-with-alzheimers.html|access-date=April 23, 2015|work=The New York Times|date=April 22, 2015}}</ref>

Within literature,{{vague|date=August 2019}} definitions surrounding consent and how it should be communicated have been contradictory, limited or without consensus.<ref name=Roffee/><ref name=Beres/> Roffee argued that legal definition needs to be universal, so as to avoid confusion in legal decisions. He also demonstrated how the moral notion of consent does not always align with the legal concept. For example, some adult siblings or other family members may voluntarily enter into a relationship, however the legal system still deems this as incestual, and therefore a crime.<ref>{{cite journal|doi=10.1093/hrlr/ngu023|title= No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights| volume=14 |issue= 3| journal=Human Rights Law Review|pages=541–572|year= 2014|last1= Roffee|first1= J. A.}}</ref> Roffee argues that the use of particular language in the legislation regarding these familial sexual activities manipulates the reader to view it as immoral and criminal, even if all parties are consenting.<ref>{{cite journal|title= The Synthetic Necessary Truth Behind New Labour's Criminalisation of Incest| doi=10.1177/0964663913502068 | volume=23|journal=Social & Legal Studies|pages=113–130|year = 2014|last1 = Roffee|first1 = James A.| s2cid=145292798 }}</ref> Similarly, some children under the legal age of consent may knowingly and willingly choose to be in a sexual relationship. However the law does not view this as legitimate. Whilst there is a necessity for an age of consent, it does not allow for varying levels of awareness and maturity. Here it can be seen how a moral and a legal understanding do not always align.<ref>{{cite book|title=Roffee, James (2015). When Yes Actually Means Yes in Rape Justice. 72 - 91|doi=10.1057/9781137476159_5 |chapter = When Yes Actually Means Yes|year = 2015|last1 = Roffee|first1 = James A. |isbn=9781137476159}}</ref>

Initiatives in sex education programs are working towards including and foregrounding topics of and discussions of sexual consent, in primary, high school and college Sex Ed curricula.  In the UK, the Personal Social Health and Economic Education Association (PSHEA) is working to produce and introduce Sex Ed lesson plans in British schools that include lessons on "consensual sexual relationships," "the meaning and importance of consent" as well as "[[rape myth]]s".<ref name=UK>{{cite journal|last=Rawlinson|first=Kevin|title=Plans for sexual consent lessons in schools 'do not go far enough'|date=9 March 2015}} Retrieved March 13, 2015.</ref> In U.S., California-Berkeley University has implemented affirmative and continual consent in education and in the school's policies.<ref name=Grinberg/> In Canada, the Ontario government has introduced a revised Sex Ed curriculum to Toronto schools, including new discussions of sex and affirmative consent, healthy relationships and communication.<ref name=CAN>{{cite journal|last=Rushowy|first=Kristin|url=https://www.thestar.com/yourtoronto/education/2015/02/25/in-ontario-sex-ed-consent-the-hot-issue.html|title=In Ontario sex ed, consent the hot issue|newspaper=The Toronto Star|date=25 February 2015}} Retrieved March 10, 2015.</ref>

===Affirmative consent===
Affirmative consent (enthusiastic yes) is when both parties agree to sexual conduct, either through clear, verbal communication or nonverbal cues or gestures.<ref name=Grinberg>{{cite journal|last=Grinberg|first=E.|url=http://www.cnn.com/2014/09/03/living/affirmative-consent-school-policy/|title=Enthusiastic yes in sex consent education|date=29 September 2014 |access-date=March 10, 2015 |website=CNN }}</ref> It involves communication and the active participation of people involved. This is the approach endorsed by colleges and universities in the U.S.,<ref>{{Cite news |title=Opinion {{!}} Affirmative consent: A primer |newspaper=Washington Post |url=https://www.washingtonpost.com/news/in-theory/wp/2015/10/12/affirmative-consent-a-primer/ |access-date=2023-05-03 |issn=0190-8286}}</ref> which describe consent as an "affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity." According to Yoon-Hendricks, a staff writer for Sex, Etc., "Instead of saying 'no means no,' 'yes means yes' looks at sex as a positive thing." Ongoing consent is sought at all levels of sexual intimacy regardless of the parties' relationship, prior sexual history or current activity ("Grinding on the dance floor is not consent for further sexual activity," a university policy reads).<ref name=Grinberg/> By definition, affirmative consent cannot be given if a person is intoxicated, unconscious or asleep.

There are 3 pillars often included in the description of sexual consent, or "the way we let others know what we're up for, be it a good-night kiss or the moments leading up to sex."

They are:

# Knowing exactly what and how much I'm agreeing to
# Expressing my intent to participate
# Deciding freely and voluntarily to participate<ref name=Grinberg/>

To obtain affirmative consent, rather than waiting to say or for a partner to say "no", one gives and seeks an explicit "yes". This can come in the form of a smile, a nod or a verbal yes, as long as it is unambiguous, enthusiastic and ongoing. "There's varying language, but the language gets to the core of people having to communicate their affirmation to participate in sexual behavior," said Denice Labertew of the California Coalition Against Sexual Assault.<ref name=Grinberg/> "It requires a fundamental shift in how we think about sexual assault. It's requiring us to say women and men should be mutually agreeing and actively participating in sexual behavior."<ref name=Grinberg/>

=== Critiques of affirmative consent ===
{{More citations needed section|date=August 2024}}
The above concept of affirmative consent has become more mainstream and promoted in public discourse, institutions and the workplace, especially following the #MeToo scandals. However, feminists from varying political backgrounds have voiced concerns and critiques of affirmative consent as a solution to both sexual assault and creating sexual equality and autonomy between all genders.<ref>{{Cite journal |last=Sikka |first=Tina |date=May 2021 |title=What to do about #MeToo? Consent, autonomy, and restorative justice: A case study |url=https://onlinelibrary.wiley.com/doi/10.1002/sgp2.12027 |journal=Sexuality, Gender & Policy |volume=4 |issue=1 |pages=24–37 |doi=10.1002/sgp2.12027 |issn=2639-5355}}</ref> If women, queer people and other marginalized groups are not free to say no, why would they be free to say yes? <ref name="Harris 155–178">{{Cite journal |last=Harris |first=Kate Lockwood |date=2018-03-04 |title=Yes means yes and no means no, but both these mantras need to go: communication myths in consent education and anti-rape activism |url=https://www.tandfonline.com/doi/full/10.1080/00909882.2018.1435900 |journal=Journal of Applied Communication Research |volume=46 |issue=2 |pages=155–178 |doi=10.1080/00909882.2018.1435900 |issn=0090-9882|url-access=subscription }}</ref> Feminists have been seeking for more transformative alternatives that go beyond a (verbal) agreement between sexual partners, examining the issue as a political question related to power structures, the influence of neoliberal perceptions of the self and the complexity of human desire.

==== Neoliberal contractualism and rationalism ====
{{unreferenced section|date=August 2024}}
The common form of affirmative consent assumes that humans act as rational and independent beings who, at any point in any interaction, are fully aware of what they are (not) consenting to, whether they want to and are able to make a conscious, valid decision. Consent, as it is practiced now, thus requires us to rationalize desires and prioritizes thinking over feeling, and reason over emotions. The resulting consent is shaped in a neoliberal form of contractualism which makes a withdrawal of consent or a change in the conditions of the activity at stake rather challenging. This form of consent as a contract is assuming consent to happen between two (or more) individual and rational actors and it does not give room to forms of discomfort, vulnerability or discussion within the practice consented to. Additionally, this contractualism mostly relies on verbal, affirmative consent and overlooks non-verbal or alternative ways of consenting. The latter is rather essentializing signs of affirmation and, due to its reliance on verbal consent in form of understandable words, can be ableist by invalidating non-verbal consent. Furthermore, contractualism assumes consent to be rational by nature and implies that we always know rationally whether or not we want to consent to something. However, especially in the sphere of interpersonal sexual and non-sexual activities, our own needs or desires are not always rational but can rather be ambiguous, contradicting or unclear. Consent in the form of neoliberal contractualism is unable to include and reflect this ambiguity and the lack of rationality.{{citation-needed|date=August 2024}}

==== Socio-cultural vs legal debate ====
Arguably, there is a distinction that is rarely made in the debate around consent: the socio-cultural and the legal. While talking about consent, arguments are often informed and talked about in a legal framework: What do we need to be protected in the current legal framework? Which formulations give the best protection to victims of sexual violence? However, when talking about this particular protection there is also a need for protection through prevention, a protection by society rather than the law.

While it is not necessarily a given that affirmative consent provides the best legal protection for victims without taking away their agency, there is another danger in linking the legal debate and our overall understanding of consent. Relying on the legal framework and presenting these as the question of consent takes away the need for change and discussion on the socio-cultural level that has the potential to offer even more complexity, flexibility and room to rethink our sexual and overall encounters beyond the protection against violence. A socio-cultural debate would be one around our needs, attitudes and behaviors and the changes needed, which arguably is a more complex debate to hold and handle.<ref>{{Cite journal |last=Meadows |first=Agnes |date=December 2021 |title=Between desire and uncertainty: ''Tomorrow Sex Will be Good Again'' by Katherine Angel |url=http://dx.doi.org/10.1111/criq.12646 |journal=Critical Quarterly |volume=63 |issue=4 |pages=126–131 |doi=10.1111/criq.12646 |issn=0011-1562|url-access=subscription }}</ref> With a certain level of protection this complexity is needed though to rethink our encounters beyond the mantras of 'no means no' and 'only yes means yes', something that is not reductionist to be applied in a legal setting and that gives the possibility to imagine interactions beyond the current status quo.<ref name="Harris 155–178"/>

==See also==
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*[[Age of consent]]
*[[Assumption of risk]]
*[[Consent of the governed]]
*[[Pacta sunt servanda]]
*''[[Saverland v Newton]]''
*[[Prenuptial agreement]]
*[[Sex positive]]
*[[Sociocracy]] (decision-making by consent)
*[[Victim blaming]]
*''[[Volenti non fit injuria]]''
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==References==
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{{Ethics}}
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{{Authority control}}

[[Category:Consent| ]]
[[Category:Tort law]]
[[Category:Autonomy]]
[[Category:Concepts in ethics]]
[[Category:Medical ethics]]
[[Category:Defense (legal)]]