The Inconsistencies of Consent

U.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts adopting a similar approach for finding consent across the three areas. Courts focused on observable signs of consent, verbal or nonverbal communications, to determine existence of consent. They found consent unless circumstances suggested that the consenting party lacked the power to use their will. However, courts began to diverge in the early and mid-twentieth century in their approaches to ascertaining consent. In contract disputes, courts’ consent approach has remained static, focusing on observable signs of consent or, in contract law parlance, “manifestations of assent.” In tort cases involving medical treatment, courts began requiring more than observable signs of consent; instead, courts focused on the consenting party’s access to information and comprehension, described by scholars as the informed consent doctrine. The judicial consent approach undertook the most dramatic change in criminal cases involving admissibility of confessions with judicial adoption of presumption of non-consent in custodial interrogation without the required warnings. This article suggests that multiple factors appear to have contributed to divergent consent approaches across the three areas. Consent plays a different role in contract disputes from that in medical treatment and criminal confession cases. Courts have adopted a heightened consent inquiry in medical treatment and criminal confession cases as responses to significant social changes and increased public awareness of individual rights and the need to protect individuals from potential abuses and arbitrary government power. In addition, human cognitive biases—our flawed decision-making process, may have also contributed to the divergence