Special Case of Consent: Elements of consent: Can be non-verbal Effective consent if reasonably believed P consented (look at totality of circumstances) Effective consent if P consents to the act, even if P did not consent to its consequences No consent if not voluntarily given and D knows this (coercion/duress, power imbalance) Consent ineffective if not meaningful consent and D knows this P incapable of understanding nature of act/consequences/moral significance P misled/mistaken as to true nature of act Consent not technically an affirmative defense, consent negates the intent element of an intentional tort Consent shifts the burden of proof (P has burden of showing there is no consent, D has burden of showing there is an affirmative defense) Children and those without the mental capacity to understand meaningful consent do not give consent. P can only consent if they fully understand nature of act, do not consent if they are misled Patient Consent to Treatment Non-consent: batter if patient refused to consent to specific procedure (Ashcraft, Duncan) Scope of Consent: no informed consent if patient not informed of Specific procedures will/may perform (Kaplan) Reasonably foreseeable risks Incapacitated/incompetent patient: No battery if: Emergency Medically appropriate treatment; and No patient surrogate available in timely manner Cases and Issues (Consent) Robins was a female inmate who was taken into another room to Robins v. Harris: perform sexual acts on defendant. Court ruled that consent to sexual contact was no of autonomy as an inmate, it would be incongruous to defense. Given Robin’s lack withhold the of consent in the criminal context but allow Soules the defense in a civil claim. P alleged that D transmitted HIV to her through consensual sexual Doe v Johnson: contact. Alleges that Johnson knew or should have known that he had high risk of being infected with HIV. Motion to dismiss battery claim denied. P consented to sex but not sex with someone who had venereal disease. P consented to act but not result, not a reasonable defense, try to narrowly define act
Special Case of Consent: Elements of consent: Can be non-verbal Effective consent if reasonably believed P consented (look at totality of circumstances) Effective consent if P consents to the act, even if P did not consent to its consequences No consent if not voluntarily given and D knows this (coercion/duress, power imbalance) Consent ineffective if not meaningful consent and D knows this P incapable of understanding nature of act/consequences/moral significance P misled/mistaken as to true nature of act Consent not technically an affirmative defense, consent negates the intent element of an intentional tort Consent shifts the burden of proof (P has burden of showing there is no consent, D has burden of showing there is an affirmative defense) Children and those without the mental capacity to understand meaningful consent do not give consent. P can only consent if they fully understand nature of act, do not consent if they are misled Patient Consent to Treatment Non-consent: batter if patient refused to consent to specific procedure (Ashcraft, Duncan) Scope of Consent: no informed consent if patient not informed of Specific procedures will/may perform (Kaplan) Reasonably foreseeable risks Incapacitated/incompetent patient: No battery if: Emergency Medically appropriate treatment; and No patient surrogate available in timely manner Cases and Issues (Consent) Robins v. Harris: Robins was a female inmate who was taken into another room to perform sexual acts on defendant. Court ruled that consent to sexual contact was no defense. Given Robin’s lack of autonomy as an inmate, it would be incongruous to withhold the of consent in the criminal context but allow Soules the defense in a civil claim. Doe v Johnson: P alleged that D transmitted HIV to her through consensual sexual contact. Alleges that Johnson knew or should have known that he had high risk of being infected with HIV. Motion to dismiss battery claim denied. P consented to sex but not sex with someone who had venereal disease. P consented to act but not result, not a reasonable defense, try to narrowly define act