Consent Defense and Intentional Torts
Created by FindLaw's team of legal writers and editors | Last reviewed August 17, 2023
Many assume that assault and battery are solely criminal acts to be reported to the police and prosecuted in criminal court. If you've been threatened or harmed physically or emotionally, you may also have legal options available under civil tort law. This would allow you to privately sue a civil defendant (tortfeasor). You may file your lawsuit using a personal injury attorney and without the help of the government to enforce criminal law.
However, if you consented to the same act that gave rise to the tort, your personal injury lawsuit may not get off the ground. This is true even if you suffered serious injuries. Read on to learn more about intentional torts and the consent defense in civil actions.
Understanding Intentional Torts
There are generally three categories of torts:
- Negligent Torts: These deal with reasonable care and carelessness. Examples of cases are car accidents, wrongful death, and malpractice cases
- Strict Liability Torts: These deal with product liability and defects
- Intentional Torts: These are unlike negligence and strict liability torts. Intentional torts deal with a defendant's purposeful misconduct
An intentional tort is a wrongful act that causes harm to another person. It is committed intentionally or with reckless disregard of the possibility of harm. While the law can vary across jurisdictions, the most common types of intentional torts are:
- Battery: The intentional application of physical force. This is offensive contact with another person's body without their consent
- Assault: An attempted battery (physical contact need not occur). This includes harmful or offensive acts that are meant to make a person afraid that they will be immediately hurt or injured
- Trespass: Entering the land of another without that person's consent
- False Imprisonment: The unlawful restraint of a person against his or her will without legal justification or authority
- Intentional Infliction of Emotional Distress: Extreme or outrageous conduct that intentionally or recklessly causes severe emotional distress
- Defamation: Oral or written defamatory statements published to third parties resulting in injuries to a plaintiff
There are various legal tort defenses available to those who are sued for common law causes of action such as those above. Common defenses include self-defense, defense of others, and defense of property.
In trespass to chattel contexts where someone uses a property owner's personal property without permission, necessity defenses, such as public necessity and private necessity, can be used to argue that the use was urgent and for the good of the community or one's private needs. For example, shoplifting a fire extinguisher to put out a fire to prevent greater harm to the community may be a tortious act, but it could be justified using a public necessity defense.
But what about consent? As you may have noticed, the lack of consent is included in the definition of some intentional torts. Therefore, it makes sense then that consent is a defense to the commission of an intentional tort.
Applying the Consent Defense
Consent is an affirmative defense that may be available to you if you are 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. The law generally recognizes that "to one who is willing, no harm is done."
Consent can be given expressly in writing or verbally, and can also be implied by a person's conduct (i.e. implied consent). Whether consent was given is judged on an objective standard, namely, if a “reasonable person" could conclude that consent was given.
A good example of the consent defense to intentional torts is voluntarily participating in a tackle football game. If you knowingly choose to participate in this game, then you consent to being touched by other players, even to being tackled. You likely could not sue for the intentional torts of assault or battery if you were injured from being tackled, since you consented to this activity.
However, if the act in question exceeds the consent you have given, then it may be an intentional tort claim. For example, during the football game, an opponent gets worked up and punches you in the face or engages in the use of deadly force. This behavior exceeds the permission you gave, and you may be able to sue that person.
Consent can also be revoked. For example, let's say your friend gave you a key to her home and routinely allows you to enter when she wasn't home. If your friend later tries to sue you for the intentional tort of trespass, you can invoke the defense of consent. However, your friend may tell you that she wants you to stop entering her home while she isn't home. You could be sued for trespass if you later enter her home. The defense of consent would not be available to you because your friend revoked her consent.
The Capacity to Consent
A person must have the capacity to give consent. Consent may be found to be invalid if the person is too young to give consent, is intoxicated, or is mentally incompetent. To be valid, consent also cannot be obtained by trickery, misrepresentation, fraud, under duress, or given as the result of a mistake.
Speak With a Personal Injury Defense Attorney
The law can be complex, and consent by itself doesn't automatically mean a defendant is off the hook. For example, courts will look at the totality of a defendant's actions. They will consider whether reasonable force was used even where consent may have been given. Sometimes a defendant's actions can be found to be so shocking that they may even be responsible for paying out punitive damages to a plaintiff.
Defending against personal injury cases can be complicated. If you have been sued for an intentional tort, there may be defenses available to you, including the defense of consent. A great first step is to discuss your case with an experienced personal injury defense lawyer.
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