Many situations in life involve consent, which is your go-ahead for another party to do something to or for you.
Consent is required for several things like getting medical treatment and signing liability waivers. However, you need to understand the difference between expressed consent and implied consent.
Expressed consent is far more common and requires you to physically sign or say that something is okay. On the other hand, implied consent does not require your approval because the situation makes consent an unspoken understanding.
As you might imagine, implied consent depends on the circumstances. To help you understand when it’s relevant, we’ll take a look at the typical situations that involve implied consent below.
Arguably the most common scenario with implied consent is drunk driving.
There are many issues surrounding consent when pulled over, but in one situation it is clear. If a police officer suspects that you may be intoxicated, then they have your implied consent to perform a breathalyzer test.
When you applied for your driver’s license, doing so gave implied consent to be subjected to breathalyzer tests. This means that you are obligated to comply with an officer’s orders should they wish to conduct a field sobriety test.
If you don’t allow them to test you, then you will face consequences. This varies depending on your state’s laws, but anything from license suspension to mandatory jail time might be the result.
In this situation, having the right to drive creates implied consent for DUI testing.
Another popular implied consent situation involves medical treatment.
This is a little tricky because you also give expressed consent before receiving medical treatment. However, there are two key scenarios where implied consent might be used instead.
The first example involves being treated when you’re unconscious or impaired. As you can’t possibly give expressed consent, your consent is implied to get you needed treatment.
For reference, if you’re in a situation where someone needs to perform CPR on you, as long as they’re acting in good faith, then they have implied consent to help you and aren’t liable for further injury.
The other example is when you’re undergoing a procedure. Many surgeries have the risk of complications, which may require another procedure to correct it.
By agreeing to the initial procedure, you give your implied consent to have further procedures if they are mandatory.
While you do give implied consent to medical treatment, this does not cover malpractice. Physicians must do their best to properly treat you and anything different is against your consent.
Inherently Risky Activities
Inherently risky activities are another venture that carries implied consent.
This is also known as assumption of risk. When you participate in activities that are inherently dangerous like skydiving or contact sports, there is an understanding that an injury is a natural possibility from engaging in the activity.
This means that you’re giving your implied consent to sustain an injury from normal behavior experienced from the activity.
For example, if you play in a weekly hockey league, then there’s surely a risk of breaking a bone, sustaining a bruise, or enduring a concussion. Should any of these happen from regular play, then this is covered under implied consent.
Alternatively, if you break your nose as a result of a fight that breaks out during the match, then this is not covered. This is because it is not an aspect of normal behavior and you haven’t consented to it.
Be aware that risky activities are exactly that – risky! By engaging in them, you accept this risk and give your consent to experiencing it.
Finally, you should also know when consent is explicitly not implied. There is no situation where this is more relevant than sexual assault.
When it comes to sexual assault, there is not a single situation where consent is implied. It doesn’t matter what you wear, your previous behavior, or the impression that you give off.
The only time that consent is given before having sex is verbal. If you are silent, say no, or ask them to stop, then you are not giving your consent.
With this in mind, don’t overlook any situation that makes you feel uncomfortable. You aren’t obligated to act a certain way or do anything that you don’t want to.
Every day, there are dozens of things that you consent to. Sometimes this consent is expressed and other times it is implied.
Implied consent is less obvious, but it still means that you’ve agreed to a situation, usually as a result of doing or agreeing to something else.
A few situations that often involve implied consent include drunk driving, medical treatment, and inherently risky activities. It has no role in sexual assault, meaning that implied consent is never given before sex.
Take the time to understand what you’re consenting to each day, both expressed and implied. Be sure that you aren’t agreeing to anything that you are uncomfortable with!