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Does Saying “Yes” Always Make It Right? The Role of Consent in Civil Battery

Alex Geisinger

Vol. 54

April 2021

Page 1853

After hundreds of years of jurisprudence, one would expect that something as basic as the prima facie elements of common-law battery would be well-settled, yet nothing could be further from the truth — especially when it comes to the issue of consent. Indeed, recognizing just how unsettled the law is, the Restatement Third of Torts retreats from the position of earlier Restatements — which made non-consent an element of battery — and takes no position on whether consent should be treated in the prima facie elements or as an affirmative defense. Instead the Restatement Third charges scholars and the courts alike with the task of considering consent’s proper function in battery law.

This Article takes up the charge of the Restatement Third. After examining the current state of the law in the U.S. and in other common law jurisdictions, it argues that, contrary to the position taken by the first two Restatements and many U.S. courts, consent is properly treated as an affirmative defense to battery. Arguments for non-consent to be treated as an element, the Article explains, are based on a rationale that consent “magically” transforms otherwise wrongful contacts into legally acceptable ones. Such a rationale, the Article argues, is unpersuasive because it prioritizes autonomy over dignity and bodily integrity, while ignoring many factors, such as unequal distribution of wealth and patriarchal gender norms, that undermine the validity of consent in general.

After explaining the limitations of the majority position, the Article then turns to the positive reasons for making consent an affirmative defense. In the process, the Article describes a fundamental misunderstanding in the reasoning of courts and commentators regarding the element of non-consent. Many courts and commentators discuss non-consent in terms of protecting plaintiff’s autonomy and promoting efficiency, yet, as an element, which places the burden of proof on the plaintiff, non-consent advances neither of these goals. It is only by making consent an affirmative defense that these goals can be furthered.

The difference between the two roles — element or affirmative defense — is of enormous consequence in the era of the “#Metoo” movement, where questions of consent to sexual contacts often take center stage and the burden of proof often matters. The arguments made in this Article, however, are relevant to all civil batteries — from barroom brawls to spousal abuse. Contrary to the positions taken by the first two Restatements and many U.S. courts, the Article concludes, interests in dignity, autonomy, and efficiency are best served when consent is treated as an affirmative defense. View Full Article

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