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Involuntary communication of consent.

Re: Involuntary communication of consent.

Postby shootist » Thu Aug 17, 2017 7:58 pm

For some or other reason this thread has reminded me of a tale about an oldish couple who had 23 children. when asked how he managed it, the man replied that his wife was stone deaf and every night he would say to her "Are you going to sleep or what?" and she would reply "What?"
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Re: Involuntary communication of consent.

Postby shootist » Thu Aug 17, 2017 8:06 pm

megaman wrote:But it is well known that ambushing someone with a leading question can cause them to involuntarily give a false positive.
Therefore in the situation described the person B (who is relying on the consent) has exceted influence on A
and it should be seen as undue influence because As action in saying yes was completely involuntary, it was out of his control he could not have done anything about it - could there be an influence more undue than one which causes an involuntary action (as apposed to one which is merely coerced)


In the case of the purloined pen when the not a lender said yes, did that exert (best guess) influence enough to forever gag the not a lender from saying, "Hold on, I meant 'no'."?

There might also be a relevance if a sufferer of Tourette's syndrome was asked what they wanted to do next and they replied.... oh, work it out.

Outside such admittedly odd scenarios, yours are without any real meaning. Why not just give us the complete scenario you are obviously working towards and it can be discussed properly.
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Re: Involuntary communication of consent.

Postby megaman » Fri Aug 18, 2017 10:59 pm

shootist wrote:
megaman wrote:But it is well known that ambushing someone with a leading question can cause them to involuntarily give a false positive.
Therefore in the situation described the person B (who is relying on the consent) has exceted influence on A
and it should be seen as undue influence because As action in saying yes was completely involuntary, it was out of his control he could not have done anything about it - could there be an influence more undue than one which causes an involuntary action (as apposed to one which is merely coerced)


In the case of the purloined pen when the not a lender said yes, did that exert (best guess) influence enough to forever gag the not a lender from saying, "Hold on, I meant 'no'."?

There might also be a relevance if a sufferer of Tourette's syndrome was asked what they wanted to do next and they replied.... oh, work it out.

Outside such admittedly odd scenarios, yours are without any real meaning. Why not just give us the complete scenario you are obviously working towards and it can be discussed properly.


I do not want to disclose information about a complete example.
but i ask
if you accept that a person with Tourette's saying yes involuntarily at the wrong moment would not amount to consent
then surely if you have to accept that if a person says yes involuntarily for any reason it also fails to amount to consent

I would say in my example it is more important that it is recongised that consent has not occured than in the case on the tourrets person because in my example the person seeking consent has caused the involuntary word, in your example it is a mere coincidence.
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Re: Involuntary communication of consent.

Postby shootist » Sat Aug 19, 2017 8:23 am

megaman wrote:I do not want to disclose information about a complete example.
but i ask
if you accept that a person with Tourette's saying yes involuntarily at the wrong moment would not amount to consent
then surely if you have to accept that if a person says yes involuntarily for any reason it also fails to amount to consent

I would say in my example it is more important that it is recongised that consent has not occured than in the case on the tourrets person because in my example the person seeking consent has caused the involuntary word, in your example it is a mere coincidence.


If your somewhat doubtful consent situation is accepted, it would still be necessary to demonstrate that the person who mistakenly consented was further prevented from withdrawing that mistaken consent. To continue with the Tourette's example, if their response was a one word colloquial term for copulation and that was taken as a consent to such, a resistance, followed by another word, such as "Off!" could not be ignored.

Unless you give a details scenario you are not going to get the answer you seek, which I doubt very much you will anyway.

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Re: Involuntary communication of consent.

Postby dls » Sat Aug 19, 2017 3:16 pm

if you accept that a person with Tourette's saying yes involuntarily at the wrong moment would not amount to consent
then surely if you have to accept that if a person says yes involuntarily for any reason it also fails to amount to consent


The test is not entirely whether the person consents. It is about whether the appearance is given of having consented.
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Re: Involuntary communication of consent.

Postby megaman » Sat Aug 19, 2017 3:34 pm

dls wrote:
if you accept that a person with Tourette's saying yes involuntarily at the wrong moment would not amount to consent
then surely if you have to accept that if a person says yes involuntarily for any reason it also fails to amount to consent


The test is not entirely whether the person consents. It is about whether the appearance is given of having consented.


Surely in the example i gave there would be sufficient doubt as to the persons consent.
can you cite case examples
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Re: Involuntary communication of consent.

Postby dls » Sat Aug 19, 2017 4:38 pm

Surely in the example i gave there would be sufficient doubt as to the persons consent.

Why?

Each situation is an assessment of the particular facts - it is not a great question of law.

The whole history of rape cinvictions and trials involves exactly this distinction - the defendant believes that consent has been given even if in reality it was not. If a jury accepts this as a fact (subject to modern presumptions) then he is not guilty. That he is not guilty does not mean that she consented.
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Re: Involuntary communication of consent.

Postby megaman » Tue Aug 29, 2017 5:26 pm

dls wrote:
Surely in the example i gave there would be sufficient doubt as to the persons consent.

Why?

Each situation is an assessment of the particular facts - it is not a great question of law.

The whole history of rape cinvictions and trials involves exactly this distinction - the defendant believes that consent has been given even if in reality it was not. If a jury accepts this as a fact (subject to modern presumptions) then he is not guilty. That he is not guilty does not mean that she consented.


Does it have to be a reasonable belief that consent was given or merely a genuine one.
can you cite any cases
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Re: Involuntary communication of consent.

Postby shootist » Tue Aug 29, 2017 6:28 pm

megaman wrote:Does it have to be a reasonable belief that consent was given or merely a genuine one.
can you cite any cases


I would suggest you read and inwardly digest the following link.

http://www.cps.gov.uk/legal/p_to_r/rape_and_sexual_offences/consent/#a03
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Re: Involuntary communication of consent.

Postby dls » Thu Aug 31, 2017 8:17 am

The dangers here are evidenced by the title of the thread which actually refers to someone who does consent, but imformed teh otehr party of that consent without intending that communication -an example miht be a couple roleplaying a rape.
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