Consent as a Defense in Tort Law

Consent is an affirmative defense that may be available if one is being sued for an intentional tort. Under this theory, a person who voluntarily consents to a particular act cannot also claim that the same act is an intentional tort.

Analysis of the Term Consent

If one is being sued for an intentional tort, one may be able to use consent as an affirmative defense. According to this idea, a person who freely agrees to an action cannot also assert that the same action constitutes an intentional tort. The principle "to one who is willing, no harm is done" is commonly acknowledged by the law.

Consent can be expressed orally or in writing, or it might be inferred from someone's actions. An objective standard is used to determine if consent was provided, specifically, whether a "reasonable person" could come to that conclusion.

The Latin proverb “volenti non fit injuria”, which means "to one who is willing, no evil is done," makes it clear that consent from the one who was wounded can eliminate the existence of a tort. A reasonable person's belief that the injured party consented will determine whether or not there was a tort, even if there was no actual desire to assent. Some situations will interpret silence or inaction as agreement.

Even in cases where there is consent, the defendant is not allowed to go beyond what was agreed upon. A football player, for instance, can anticipate being tackled, and a serious injury may occur without any tort; however, if the tackle occurred during a stoppage in play or on the sidelines, the player would likely have a cause of action against the tackler because the action went beyond the bounds of the game and thus exceeded the consent of the player. A tort will also exist if the defendant commits an act that materially differs from what was agreed to.

Before or even during an act, consent can be rescinded. For instance, if someone consents to sexual contact but later changes their mind, the offender may be held accountable for battery if he maintains the contact. Additionally, affirmative deception can invalidate consent. Hence, even if the defendant knew or had a good reason to know that the plaintiff was misinformed about the terms of her agreement, he may still be held accountable for his actions. The plaintiff's error, however, must concern the "essential character" of the conduct itself rather than a side issue.

Moreover, the restatement and a minority of states hold that one cannot consent to an unlawful act, save in cases where the force used to carry it out exceeds the consent. Moreover, one must be of legal age to give permission; thus, a child or someone who is mentally incompetent cannot give their consent (this rule usually extends to intoxicated people as well, though the level of intoxication necessary to vitiate the consent varies). This rule has one "emergency exemption," as the name suggests. The person must be unconscious and time must be of the essence in order for the emergency exemption to apply. The court will consider in these circumstances whether a reasonable person would have given consent if they had been cognizant.


A rationalization defense to illegal behavior may also be based on the victim's consent. The most prevalent defense to sexual offenses like rape is consent, and most sexual offenses require proof of lack of consent beyond a reasonable doubt.


Q1. Is consent an effective tort defense?

Ans. A person has no legal recourse in tort when they knowingly cause harm to themselves. The plaintiff is not permitted to complain if he freely decides to endure some harm, and his permission can be used as a strong defense against him.

Q2. What does the tort defense of consent mean?

Ans. It is not a strong defense if the permission was gained by coercion or deceit or from a minor. For a defendant-performed act, consent is required. For instance, if you invite someone over for supper and they enter your bedroom without your consent, that person will be charged with trespassing.

Q3. What kinds of consent are there in tort cases?

Ans. Express consent and implicit consent are the two main types of consent that can be granted. When the defendant formally declares his willingness to acquiesce in the plaintiff's conduct, this is known as "express consent." The plaintiff's actions suggest that there was implied consent.

Q4. Is consent a valid defense?

Ans. A defendant cannot use the so-called "rough sex gone bad" defense, which relies on the victim's agreement to be subjected to such injury, as evidence.

Q5. How can consent be demonstrated in court?

Ans. Consent must be categorical, unambiguous, voluntary, and expressed through words, gestures, or any other verbal or nonverbal communication that expresses a desire to engage in a particular act.

Updated on: 17-Mar-2023


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