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Involuntary communication of consent.

Involuntary communication of consent.

Postby megaman » Tue Aug 15, 2017 8:35 pm

Consent has to be voluntary and the person consenting has to actually mean it.

For example if someone is unexpectedly asked by someone who he did not even know was there if something is ok,
and it is phrased as a yes/no question, ie
"im going to borrow your pen is that ok"
he may involuntarily say yes when the actual answer was no
In this case there would be no consent.

Does anyone know of any cases involving situations like the one described ubove where someone says that they consented to something when in fact they did not actually consent.
I need specific case law.
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Re: Involuntary communication of consent.

Postby Millbrook2 » Tue Aug 15, 2017 9:31 pm

If someone says yes whether involuntary or not how can you say the actual answer was no. The actual answer was yes, the consent based on your scenario was yes.

Of course there maybe undue influence, incapacity, no intent to create legal relations and I hope others can point out the right tree to bark up. Rape comes to mind as the area where apparent consent is often disputed.
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Re: Involuntary communication of consent.

Postby megaman » Wed Aug 16, 2017 7:38 pm

Millbrook2 wrote:If someone says yes whether involuntary or not how can you say the actual answer was no. The actual answer was yes, the consent based on your scenario was yes.


Because the ACTUAL answer, the persons state of mind, was no and this is what consent is - the person did not actually consent.
Consent is what the person wanted not what the person appeared to communicate.
The fact that he said yes does not magically change this.[/quote]


Millbrook2 wrote:Of course there maybe undue influence, incapacity, no intent to create legal relations and I hope others can point out the right tree to bark up. Rape comes to mind as the area where apparent consent is often disputed.

Well if undue influence means that no consent happened then surely an involuntary action is also not consent
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Re: Involuntary communication of consent.

Postby Smouldering Stoat » Wed Aug 16, 2017 9:09 pm

If A tells B that he consents, then B is entitled to rely upon A's consent, unless there is some reason to suppose differently.

In the example that you give, if A tells B that he consents to B borrowing his pen, then B may assume that A really does consent.

If B exerts undue influence upon A, then he cannot rely on A's consent, because of the principle that B cannot profit by his own wrongdoing, and because he knows that A did not freely consent.

It would undermine the principle of free consent if B could never rely upon what A said, if A might suddenly say that he hadn't really consented, because of some strange state of mind that B could not possibly have known about. Nobody could ever enter into any kind of arrangement which required consent with an confidence at all. We should also be wary of anything which undermines the principle that a person means what he says. If we are going to say that sometimes someone might say yes when they really mean no, then how can we say that when a woman says no, she means no?
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Re: Involuntary communication of consent.

Postby dls » Thu Aug 17, 2017 9:17 am

If we are going to say that sometimes someone might say yes when they really mean no, then how can we say that when a woman says no, she means no?


Agreed save that the current law on rape allows that a person can be in such a condition that absence ofconsent is assumed - possibly whatever might be said.
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Re: Involuntary communication of consent.

Postby shootist » Thu Aug 17, 2017 11:01 am

It is reassuring to see that the search for the Ultimate Excuse is alive and well. With determination we should eventually find ourselves in a society where nobody is to blame for their own actions or inactions. No matter how bloody stupid they are they will always be the fault of someone else.
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Re: Involuntary communication of consent.

Postby atticus » Thu Aug 17, 2017 11:30 am

If no one is responsible for their own actions or inactions, then how do you explain the need for laws or a judicial system?
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Re: Involuntary communication of consent.

Postby shootist » Thu Aug 17, 2017 2:23 pm

Lawyers gotta eat too.
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Re: Involuntary communication of consent.

Postby megaman » Thu Aug 17, 2017 5:24 pm

Smouldering Stoat wrote:If A tells B that he consents, then B is entitled to rely upon A's consent, unless there is some reason to suppose differently.

In the example that you give, if A tells B that he consents to B borrowing his pen, then B may assume that A really does consent.

If B exerts undue influence upon A, then he cannot rely on A's consent, because of the principle that B cannot profit by his own wrongdoing, and because he knows that A did not freely consent.

It would undermine the principle of free consent if B could never rely upon what A said, if A might suddenly say that he hadn't really consented, because of some strange state of mind that B could not possibly have known about. Nobody could ever enter into any kind of arrangement which required consent with an confidence at all. We should also be wary of anything which undermines the principle that a person means what he says. If we are going to say that sometimes someone might say yes when they really mean no, then how can we say that when a woman says no, she means no?


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)
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Re: Involuntary communication of consent.

Postby atticus » Thu Aug 17, 2017 7:47 pm

Is that really well-known, meg? Please refer us to the evidence.

And I struggle to see how it follows from the fact that for whatever reason you can be "ambushed" into saying the opposite of what you mean that undue influence has been excreted.
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