Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
to privilege the perspective that, historically, has enjoyed social and cultural dominance: that of
white, heterosexual men. Elizabeth Adjin-Tettey, Protecting the Dignity and Autonomy of
Women: Rethinking the Place of Constructive Consent in the Tort of Battery, 39 U.B.C. L. REV. 3
(2006). For related reasons, this doctrine poses a risk for the very populations that are most
vulnerable to sexual abuse. For example, what might an objective reasonableness inquiry mean
for non-white women, who face well-documented racialized stereotypes about their sexual
availability and sexual deviance? Id. What might it mean for plaintiffs whose key identity
markers—such as disability, poverty, or gender non-conformity—leave them underrepresented
among the legal decisionmakers who will apply this “reasonable belief” standard to their cases?
Where is the law headed? One might expect tort law to incorporate, eventually, the
evolving norms on college campuses, where both school officials and some students have
embraced the notion of “affirmative consent.” Under affirmative consent policies, sexual contact
is presumed non-consensual unless and until the parties expressly agree to it. Such policies often
go hand-in-hand with a skepticism towards expressions of consent given while an actor’s
judgment is demonstrably impaired by drugs or alcohol. The authors of the Third Restatement
(Intentional Torts to Persons) have attempted to address this difficult issue in a draft chapter on
consent, which includes a specific section on consent to sexual conduct. RESTATEMENT (THIRD)
OF TORTS: INTEN. TORTS TO PERSONS § 18 TD No 4 (2019). In the draft comments, the authors
acknowledge the “social importance” of the issue and the apparent shift in norms toward an
affirmative consent standard. Id. § 18 cmts. a & f. Ultimately, however, the authors decline to
take a position on whether affirmative consent should be the standard for consent to sexual
conduct in tort law and instead adopt a less controversial “no means no” approach to consent. Id.
§ 18 cmts. e & f. Under “no means no” policies, sexual contact is presumed consensual unless
and until a party expresses an unwillingness to permit sexual contact. If the Third Restatement’s
proposed approach to consent is widely adopted, how might this affect litigation over allegedly
tortious sexual conduct? What are the advantages and disadvantages of this approach as
compared to a standard of affirmative consent?
4. Boilerplate consent. Modern consent mechanisms in the medical care context are
radically different from the informal inferences of O’Brien. Establishing consent in a medical
context is now a matter of detailed medical paperwork. Consider the following excerpt from a
standardized consent form at Yale-New Haven Hospital:
SECTION A
1. After discussing other options, including no treatment, with my
doctor, I ask Dr. _____________________________ and/or his/her
partners to perform the following procedure(s):
____________________________________________ Name or
description of operation(s), procedure(s) and/or treatment(s). Indicate
applicable level, side, or site. I understand that this procedure is for
purposes of _________________________________________________
2. I give permission to my doctor to do whatever may be necessary if
there is a complication or unforeseen condition during my procedure.
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