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How is Consent Used as a Defense?

Consent is the provision of assent or approval usually after thoughtful consideration. There are many different types of legal consent:

Implied consent: This controversial form of consent is not explicitly granted by a person, but inferred based on his or her actions or inactions, and the circumstances and facts of the situation

Expressed consent: This form on consent can written, verbal, or nonverbal form but is unmistakably and clearly stated.

Verbal consent: Consent that is explicitly given verbally.

Nonverbal consent: Consent given by using nonverbal communication.

In criminal law, consent can be used as an excuse in order to prevent the defendant from acquiring liability for the actions at hand. A consent defense against criminal liability can occur when a defendant can argue that there was no crime due to consent given. For example, if consent was received for using a car, it cannot be considered a crime since there was no theft involved. However, there are limits placed on courts based on public policy that limit the extent to which consent can be used as a defense.

The most common example of this limitation is regarding minors who cannot consent to sexual intercourse under a certain age, resulting in the “victimless” crime of statutory rape. Other examples of these limits on the consent defense can be seen in in bigamy and incest, where consent does not justify the unlawfulness of the act.

Consent is typically considered a legitimate defense when used in situations with incidental injury, for example, in a properly regulated sport. Here the victim consents to taking the risk of injuries involved within the rules of the game. However, this does not give the sport any right to enact rules that promote excessive or malicious violence. This is also applicable to situations regarding practical jokes or “fun” active physical interaction where local standards of contract would dictate potential injury.

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