Three different categories of consent exist, each of which justifiably precludes tort liability (and also some other forms of legal and moral liability). The first is actual consent, i.e., a person’s willingness to permit the actor’s otherwise tortious conduct, whether or not the person communicates that willingness to the actor. Such consent vitiates the wrong that the actor would otherwise have committed. The second is apparent consent: the actor reasonably believes, perhaps mistakenly, that the plaintiff actually consents. The third is hypothetical consent. Here, even if the actor knows that the person does not actually consent (because the persons is asleep or unconscious or merely surprised), the actor is sometimes entitled to proceed if the actor has no reason to believe that the person would have withheld actual consent had the issue been posed. This analysis is applied to tort and criminal liability for sexual conduct.

Paper draft (dropbox):
http://bit.ly/ActHypConsent

(If you have trouble accessing the paper draft, please contact Oliver.Rawle@anu.edu.au)