The following entry contains the Scope Note appearing at the beginning of Chapter 2 – Consent, featured in Tentative Draft No. 4 of Restatement of the Law Third, Torts: Intentional Torts to Persons. This draft will be presented to membership at the 2019 Annual Meeting for approval. Until approved, this is not the position of The American Law Institute and should not be represented as such. 

CHAPTER 2 CONSENT. Scope Note

The issue of consent arises in a wide range of legal contexts—private as well as public law, tort as well as criminal law, common law as well as constitutional doctrine, and legislation. Sections 12-19 describe the principles that apply to the intentional torts to persons. Sections 12 through 17 explain the general principles, while §§ 18 and 19 clarify how the principles apply to sexual conduct and to medical treatment, respectively. With appropriate modifications, these principles should also be useful in explaining consent doctrine with respect to other torts such as trespass to land, trespass to chattels, conversion, defamation, and invasion of privacy.

The Model Penal Code: Sexual Assault and Related Offenses project includes several provisions relating to consent, including a general definition of “consent” and a number of different  sexual-assault offenses. Because the Model Penal Code project is designed to propose desirable criteria for criminal punishment, while the Restatement Third, Torts, is designed to articulate and rationalize extant common-law rules for tort liability, the two projects do not, and should not be expected to, elucidate criteria of consent in an identical fashion. The consequences of criminal liability can be quite severe relative to the consequences of tort liability. Accordingly, the criminal law might have greater reason than tort law to be very cautious before characterizing the interaction between the actor and another person as nonconsensual. For similar reasons, if the criminal law does classify a species of conduct as nonconsensual, then it is very likely that tort law should treat that conduct as nonconsensual as well. The Reporters’ Notes to the consent provisions that follow include discussion of similarities between, and differences from, the analogous consent provisions in the Model Penal Code project.

Consent and Sexual Assault in Criminal v. Tort Law on Reasonably Speaking

Listen to Erin Murphy (Reporter, Model Penal Code: Sexual Assault and Related Offenses) and Ken Simons (Restatement Third of Intentional Torts) explore the difference between criminal law and tort law in the United States and then focus on how “consent” is, and should be, defined in sexual assault allegations in the below episode of ALI’s podcast, Reasonably Speaking.