Monday, February 13, 2017

Consent

After today's class, Professor Wasserman and I briefly discussed "consent" as an affirmative defense and the way the defendant's attorney used consent as an affirmative defense in Kinsman.

The second affirmative defense listed in Kinsman (p. 40) states that, "Plaintiff consented to and was a willing participant in the acts alleged and her claims are barred by consent." If you then go to back to p. 35 and read Count 1 - Sexual Battery, Paragraph 49, you will see that the plaintiff was alleging that, "Without privilege or consent, Defendant intentionally caused offensive and harmful contacts with Plaintiff's person by removing Plaintiff's clothing, holding Plaintiff down, and forcibly raping Plaintiff ...."

Now what is interesting is that consent (or actually a lack of it) may itself go into the elements of battery. Since underlying wrong in battery is harmful or offensive conduct (and yes, there must be an intent), if there was consent in the first place, then technically it should not be a battery at all because consent would negate the harmful or offensive contact.

Therefore, if we think about consent in the above way, the counsel should have not used consent as an  affirmative defense (yes, but consent), but should have gone with failure/proof option.