Be careful what you ask for
I'm somewhat of a smartass, and I'm usually smart enough to limit it to being a smartass and not just being an ass. So both in college and in law school, professors called on me at their own risk.
Once upon a time in Torts class, the professor was discussing the candlelight dinner hypothetical, which focuses on consent in intentional torts. Intentional torts are those done with intent; the person meant them to occur. Assault or trespassing are intentional torts. Negligence is not an intentional tort.
In the candlelight dinner hypothetical, a couple are having a romantic dinner. The two get close. The man looks deep into the woman's eyes. She stares longingly back. He kisses her. They embrace. He caresses her neck, and through the freak circumstances that can only happen in tort examples, her neck breaks. The main issues discussed were was if there was a battery. Battery requires that the contact was not desired, so the underlying issue is if there was consent.
One does not need to actually say, "I consent." Consent may be implied from conduct. If the so-called objective third party or reasonable person viewed the situation and thought the injured party did seem to consent, there is consent. The candlelight dinner is a good example of implied consent, because the woman did not say, "I consent to being kissed" or "I consent to having your hand on my neck." However, from all indications, she did seem to consent to it.
So where's the funny part after all that explanation? Well, in that class, I was really pertubed with the idea of implied consent. I took it to its logical conclusion. I raised my hand and I was called on. I asked, "So does that mean implied consent is the same as 'she was asking for it?'" I was loud and clear so the entire class uttered an audible gasp. It was obvious what I was implying: that the disgusting defense offered in so many rape cases was acceptable in torts. The professor sputtered and asked me to repeat my question. I took the opportunity to ask the same question even louder. He tried to rapidly backpedal out of it, but he had to admit that yes, implied consent is "she was asking for it." He tried to give a less sexualized example, of a hypochondriac who doesn't like his hand shaken, but sticks out his hand when greeting someone. Too late, the damage was done. I had made my point.
Once upon a time in Torts class, the professor was discussing the candlelight dinner hypothetical, which focuses on consent in intentional torts. Intentional torts are those done with intent; the person meant them to occur. Assault or trespassing are intentional torts. Negligence is not an intentional tort.
In the candlelight dinner hypothetical, a couple are having a romantic dinner. The two get close. The man looks deep into the woman's eyes. She stares longingly back. He kisses her. They embrace. He caresses her neck, and through the freak circumstances that can only happen in tort examples, her neck breaks. The main issues discussed were was if there was a battery. Battery requires that the contact was not desired, so the underlying issue is if there was consent.
One does not need to actually say, "I consent." Consent may be implied from conduct. If the so-called objective third party or reasonable person viewed the situation and thought the injured party did seem to consent, there is consent. The candlelight dinner is a good example of implied consent, because the woman did not say, "I consent to being kissed" or "I consent to having your hand on my neck." However, from all indications, she did seem to consent to it.
So where's the funny part after all that explanation? Well, in that class, I was really pertubed with the idea of implied consent. I took it to its logical conclusion. I raised my hand and I was called on. I asked, "So does that mean implied consent is the same as 'she was asking for it?'" I was loud and clear so the entire class uttered an audible gasp. It was obvious what I was implying: that the disgusting defense offered in so many rape cases was acceptable in torts. The professor sputtered and asked me to repeat my question. I took the opportunity to ask the same question even louder. He tried to rapidly backpedal out of it, but he had to admit that yes, implied consent is "she was asking for it." He tried to give a less sexualized example, of a hypochondriac who doesn't like his hand shaken, but sticks out his hand when greeting someone. Too late, the damage was done. I had made my point.
posted by Pettifogger | 8:47 PM
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