Consent- guide to general law

MEANING OF CONSENT

When we talk about consent in layman’s language , it means to agree to do something or to allow someone to do something but this concept has broader meaning than this in law . It is a term of common speech , with specific definition as used in field of law.

In civil law, when making a contract for instance, consent means agreement to the same thing . In criminal law , it means something more akin to permission. Both legal sectors seek to include notions of use and abuse of power within them.

WAYS TO GIVE CONSENT

Consent is an agreement between participants. There are many ways to give consent. It includes implied consent , expressed consent, informed consent & unanimous consent.

EXPRESS CONSENT   – Maybe given in writing, by speech (orally) , or non verbally, e.g. by a clear gesture . An audio or video recording maybe disputed if a party denies that it was given . Non written express consent not evidenced by witness by witness also maybe be disputed.

IMPLIED CONSENT- Is manifested by signs, actions , or facts , or by inaction or silence , which raise a presumption that consent has been given , like physical contact by participants in a hockey game or being assaulted in a boxing match.

INFORMED CONSENT- In medicine is consent given by person who has a clear appreciation and understanding of the facts, implifications, and future consequences of an actions . For e.g. each person engaging in sexual activity is aware of any positive statuses (for sexually transmitted infections and diseases) they might expose themselves to.

UNANIMOUS CONSENT–   , or can say general consent , by a group of several parties (e.g. an association) is consent given by all parties.

LEGAL AGE OF CONSENT

The age of consent is the age at which a person is considered to be legally competent to consent . Age of consent laws vary widely from jurisdiction to jurisdiction,through most jurisdiction set the age of consent in the range 14 to 18. Officially, India’s legal age of consent is 18.

ASSENT vs CONSENT

And one should not confuse between ‘consent ’  and ‘Assent ‘
They are two vary similar words. They share the same pronunciation of their final syllable,and their definitions are almost the same. However,they have important differences in the connotation of each. In context of legal, consent  has specific more exact meaning. A person can only give consent,or permission ,if they are 18 or older. And if are younger  than 18, they can only give assent. Consent is usually provided by adults who have the mental capacity to fanthom their actions and the results that follow.

CONSENT IS FREE FROM –

Yes or no are very clear. Problems arises in may be region. This is where the consent lies. There is no room for different views on what consent is, for ambiguity or assumptions when it comes to consent, and there are bot different rules for people who have hooked up before  . so,

Essential Elements

CLEAR
Silence is not consent. Never assume you have conseil you should clarify by asking.
ONGOING
It is important to note that consent can be removed at any time-afterall, people do change this mind.
For example: you should have permission for every activity at every stage of a sexual encounter.
VOLUNTARY
Consent should be given freely and willingly i.e. saying yes without pressure or manipulations. It should be free from coercion, threats, intimediation and revocable .
COHERENT
He/ she must be capable of granting their consent. If someone is too intoxicated or incapacticated by alcohol or  drugs or is either not awake or fully awake, they are incapable of giving consent.

Conclusion:-

The absence of a “no” does not meas a “Yes.” The same goes for “maybe” silence, or not responding. You do not have consent from another person if they are sleeping or unconscious. If you use a position of authority or trust, such as a teacher or employer .

You do not have consent if –
-they are incapacitated by drugs or alcohol .
-You pressure them to say yes.
-If use threats or initiation to coerce someone into something.

So there is no room for  ambiguity or assumption when it comes to consent.

 

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Author

Mahima (legal intern at law portal)

mail id – mahimarewri@gmail.com

Author: Mahima,
1st yr faculty of law, university of Delhi