Consent and Consent Impairment

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Consent and Consent Impairment

Postby Torchship » Sat Mar 10, 2012 1:45 pm UTC

Despite the fact that consent is fundamental to the functioning of almost everything in society, many people (and legal systems) appear to have a somewhat handwavey definition of the term, and one which does not interact well with substances and conditions which alter one's mental state (alcohol, drugs, diseases, depression, etc). For example, many people believe that one should be held accountable* if one chooses to drive drunk, but should not be held accountable for any contracts made while drunk. Similarly, one is assumed to be able to consent, and hence can be held responsible, if they beat their SO while drunk, but one is generally not (based on a vague averaging of views I've read on this forum) assumed to be able to consent to sex while drunk. A mildly depressed person or a person suffering from certain diseases or disorders is widely held to be responsible for their actions, even though their level of mental impairment may be comparable to that of a drunk person, who is excused from a significant amount of responsibility (though seemingly at random). Etc., etc., etc.

Hence, in two very similar situations the 'general' definition of consent returned two wildly differing conclusions, implying that this definition possesses some major inconsistencies. Even more than that, impairments of similar magnitude are deemed to have significantly different impacts on one's ability to consent. Legal definitions parrot the the general definition in several cases (for example, I believe that one cannot consent to legal contracts while sufficiently drunk in the US, yet one can be convicted of drunk driving), creating further issues. Essentially, the entire issue appears to be firmly based on people's gut instincts about whether consent can be given in a situation without any guiding logic whatsoever.

If one cannot consent to sex while drunk, then logically one should not be able to consent to sex (or any number of other things) while suffering from any more severe form of mental impairment. People suffering from severe depression or mania, and people with various developmental disorders therefore cannot consent to sex, ever. I doubt most people will approve this state of affairs, but equally allowing consent to occur at almost any degree of impairment seems absurd. So, what - if any - is the solution to this contradiction?

*I am cutting out a logical step here for the purposes of brevity. Essentially, I hold that consent is required before one can be held accountable for one's actions (in the situations that I've outlined here). Additionally, performing an act without duress** implies consent and hence responsibility for that action. If I take a drunk and forcibly strap them into a car and make them drive, for example, then no-one will hold them responsible for drunk driving, because they did not consent to the act. No doubt these definitions fail in some edge cases, but I believe that they are adequate for this discussion.

** To be explicit, I am considering only situations where there is no duress; your decision to drive/sell your house/beat your SO/have sex is made free of any outside force (or as free as any real situation can ever be), though with some impediment to your normal thinking. Situations which include significant amounts of duress are entirely different kettles of fish, and arguably quite a lot more clear-cut.
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Re: Consent and Consent Impairment

Postby elasto » Sat Mar 10, 2012 2:19 pm UTC

I don't think it can ever be done on anything but a case-by-case basis - which is bad in terms of law because the law likes to outline objective lines in the sand (eg. have more than X units of alcohol in your blood while driving and you are guilty of DUI; have sex with someone 15y364d old and you are guilty of an offence due to the minor unable to give their consent for the act... 1 day more and you're ok etc).

Real life has to be about considering every case on its individual merits though for my money.
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Re: Consent and Consent Impairment

Postby gmalivuk » Sat Mar 10, 2012 6:25 pm UTC

Yeah, as it turns out, we call some things "edge cases" for a reason. That reason being the useful analogy with what happens when you go over the edge of something. If you're still not with me here, place your computer right near the edge of a desk or table, so that it is still resting stationary on the desk or table. Now, push it slowly toward the edge of the table. If you've followed these instructions correctly, there should be a rather sudden and dramatic change pretty soon.

Good. Now that the complete morons have smashed their computers, carry on.
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Re: Consent and Consent Impairment

Postby Azrael » Sat Mar 10, 2012 9:38 pm UTC

Torchship wrote:Despite the fact that consent is fundamental to the functioning of almost everything in society, many people (and legal systems) appear to have a somewhat handwavey definition of the term...

For example, many people believe that one could be held accountable* if one chooses to drive drunk, but could not be held accountable for any contracts made while drunk.

If we back up to the broadest sense, consent is an agreement between at least two parties.

How are your examples of one person making a decision relevant to a discussion of consent? The fact that one can be prosecuted for making bad decisions while intoxicated (driving, assault) has absolutely nothing to do with consent.
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Re: Consent and Consent Impairment

Postby Azrael » Sat Mar 10, 2012 9:50 pm UTC

And now with the purple:

I will give you the benefit of the doubt that you're not here just to talk about drunk sex, and have tried to hide it in a larger argument. But there's a caveat: We will not be discussing the effects of inebriation on sexual consent. Anyone who tries to will find the argument deleted.

Why? Because that conversation happens all the time, and is immortalized in dozens of threads regardless of the relevance to the original discussion. And the arguments always play out the same way, and end in the same place. Typically with a lock.
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Re: Consent and Consent Impairment

Postby Torchship » Sat Mar 10, 2012 11:32 pm UTC

elasto wrote:I don't think it will ever be done on anything but a case-by-case basis - which is bad in terms of law because the law likes to outline objective lines in the sand (eg. have more than X units of alcohol in your blood while driving and you are guilty of DUI; have sex with someone 15y364d old and you are guilty of an offence due to the minor unable to give their consent for the act... 1 day more and you're ok etc).

Real life has to be about considering every case on its individual merits though for my money.


I don't think the issue is that there is a line in the sand where consent is assumed on one side and not on the other, but rather that consent is assumed entirely randomly regardless of what side of the line you are on. One cannot drink and drive, for example, but one can suffer from any of a variety of illnesses or disorders and still drive, even though the total mental impairment may be similar either way.
Another problem is that even in the under-age drinking case, most people (based on my experiences) still acknowledge that there is a continuum underlying the discreet divisions, which are only made for legal purposes. Not so in the case at hand, where many people believe that there is some kind of fundamental division between different cases.

gmalivuk wrote:Yeah, as it turns out, we call some things "edge cases" for a reason.


How are any of the situations that I've outlined 'edge cases'? None of them are horribly contrived examples; they are entirely standard situations which occur every second of every day. If the current definition of 'consent' cannot deal with such mundane issues as drunk driving and poor decisions made while intoxicated, then it has major issues.

Azrael wrote:If we back up to the broadest sense, consent is an agreement between at least two parties.


I'd disagree with the notion that consent is only defined between at least two parties. If I choose to jump off a building, for example, then it is quite fair to say I 'consented' to the act and all the implications of the act (that I was aware of), as per the common language definition of the word.
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Re: Consent and Consent Impairment

Postby SlyReaper » Sun Mar 11, 2012 12:20 am UTC

The difference between drunk driving and drunk contract signing (since I'm keen to avoid the other example) is that in the latter case, there's another person involved who may or may not be taking advantage of the other person's impaired judgement. With drunk driving, it's only the driver who is at fault. Simply put, if you're drunk and doing bad things to other people (like risking crashing into them), then you're to blame. You're deemed to have consented to get behind that wheel or throw those punches. Nobody took advantage of your inebriated state to convince you to drive (unless they did, in which case, that's really fucked up). If you're drunk and having things done to you which would not be possible if you were sober, then you're not at fault and not deemed to have consented (unless you say otherwise once sobered up of course).
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Re: Consent and Consent Impairment

Postby elasto » Sun Mar 11, 2012 6:48 am UTC

I agree the law seems pretty random at times, though.

For example, driving while drunk is a crime - whereas driving while so tired that you are impaired to an equivalent degree is not. Nor is driving despite your reflexes having deteriorated to an equivalent degree through old age. The examples continue endlessly.

The law does its best though - and it's not a bad compromise as is I suppose. At least people know where they stand with it. If the police could do roadside tests for tiredness I wonder if it would become a crime to drive too tired though... I imagine it would, actually.

The ideal for driving, say, would be a sort of 'brain scan' on starting the vehicle that gages your current skill level (whether that's affected by genetics, fitness, age, tiredness, drugs etc is irrelevant) - and then the car messages the insurance company to alter your insurance rate for that day's driving proportional to the risk you represent at that moment in time. (Except that we'll have faultless auto-drive vehicles way before that could happen :p )
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Re: Consent and Consent Impairment

Postby mister k » Sun Mar 11, 2012 10:23 am UTC

elasto wrote:I agree the law seems pretty random at times, though.

For example, driving while drunk is a crime - whereas driving while so tired that you are impaired to a equivalent degree is not. Nor is driving despite your reflexes having deteriorated to a equivalent degree through old age. The examples continue endlessly.

The law does its best though - and it's not a bad compromise as is I suppose. At least people know where they stand with it. If the police could do roadside tests for tiredness I wonder if it would become a crime to drive too tired though... I imagine it would, actually.

The ideal for driving, spray, would be a sort of 'brain scan' on starting the vehicle that gages your current skill level (whether that's affected by genetics, fitness, age, tiredness, drugs etc is irrelevant) - and then the car messages the insurance company to alter your insurance rate for that day's driving proportional to the risk you represent at that moment in time. (Except that we'll have faultless auto-drive vehicles way before that could happen :p )



Well quite. Simply put its not that easy to test for tiredness, so making a law banning it would be impractical. As for age, I believe politicans have argued in the past for laws demanding people retake driving tests when they reach a certain age.

On consent and drinking: isn't the difference being whether someone is doing something you know inherently is wrong. That is, before one drinks, signing a contract with someone isn't necessarily a terrible idea, so one might make a slightly bad choice because you cannot discern that you don't really want to sign a particular contract (or can't clearly focus on certain details). But before getting drunk you know (or should know), that beating up someone, or driving while drunk are bad ideas, and no alchohol can fully excuse that failure in judgment.
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Re: Consent and Consent Impairment

Postby yurell » Sun Mar 11, 2012 10:40 am UTC

mister k wrote:Well quite. Simply put its not that easy to test for tiredness, so making a law banning it would be impractical. As for age, I believe politicans have argued in the past for laws demanding people retake driving tests when they reach a certain age.


I feel everyone should have to retake their driving tests every 5-10 years. There are a lot of people who I'm quite confident wouldn't pass the modern learners test about road rules because such a test didn't exist when/where they got their licence.
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Re: Consent and Consent Impairment

Postby Azrael » Sun Mar 11, 2012 4:25 pm UTC

Torchship wrote:
Azrael wrote:If we back up to the broadest sense, consent is a agreement between at least two parties.

I'd disagree with the notion that consent is only defined between at least two parties...

Which is why you're having trouble with how the law deals with consent. Consent is meaningless when a single person takes an action.

Consent is permission, approval or agreement. You don't have to give yourself permission to do something. You just do it.
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Re: Consent and Consent Impairment

Postby aoeu » Sun Mar 11, 2012 10:29 pm UTC

Azrael wrote:
Torchship wrote:
Azrael wrote:If we back up to the broadest sense, consent is a agreement between at least two parties.

I'd disagree with the notion that consent is only defined between at least two parties...

Which is why you're having trouble with how the law deals with consent. Consent is meaningless when a single person takes a action.

Consent is permission, approval or agreement. You don't have to give yourself permission to do something. You just do it.

Couldn't it be said that when people do things by accident they do it without their own consent?
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Re: Consent and Consent Impairment

Postby lutzj » Sun Mar 11, 2012 11:22 pm UTC

aoeu wrote:
Azrael wrote:
Torchship wrote:
Azrael wrote:If we back up to the broadest sense, consent is a agreement between at least two parties.

I'd disagree with the notion that consent is only defined between at least two parties...

Which is why you're having trouble with how the law deals with consent. Consent is meaningless when a single person takes a action.

Consent is permission, approval or agreement. You don't have to give yourself permission to do something. You just do it.

Couldn't it be sprayed that when people do things by accident they do it without their own consent?


There's also the case of minors, who can't consent to use certain controlled substances. Now that I think of it, a lot of situations where a person interacts with their environment involve some degree of consent; it's just that this consent is almost always implicitly assumed because people generally choose to do things.
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Re: Consent and Consent Impairment

Postby Torchship » Mon Mar 12, 2012 11:04 am UTC

SlyReaper wrote:The difference between drunk driving and drunk contract signing (since HULK keen to avoid the other example) is that in the latter case, there's another person involved who may or may not be taking advantage of the other person's impaired judgement.


Not necessarily. I can easily posit a situation where I, say, choose to take out one of those high-interest internet loans (or buy a bunch of stuff off Ebay with a credit card, or whatever) while inebriated; no contact with another person is ever required.

Azrael wrote:Which is why you're having trouble with how the law deals with consent. Consent is meaningless when a single person takes a action.

Consent is permission, approval or agreement. You don't have to give yourself permission to do something. You just do it.


Consent and approval are easily given implicitly; indeed, I would argue that the most common kind of consent is implicit consent (or approval, or whatever word you care to use in its stead; it all means the same in the common usage). I implicitly consent to thousands of things over the course of a single day; much of the time with no interaction with another human being. Why, then, should we assume that consent is only defined between two or more people? Where are you getting this definition from?
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Re: Consent and Consent Impairment

Postby Azrael » Mon Mar 12, 2012 12:25 pm UTC

Torchship wrote:
SlyReaper wrote:The difference between drunk driving and drunk contract signing (since HULK keen to avoid the other example) is that in the latter case, there's another person involved who may or may not be taking advantage of the other person's impaired judgement.
Not necessarily. I will easily posit a situation where I, spray, choose to take out one of those high-interest internet loans (or buy a bunch of stuff off Ebay with a credit card, or whatever) while inebriated; no contact with another person is ever required.

And case law indicates that you'd never be able to weasel out of that contract; even a precursory google search into voiding contracts bring up the necessary element of opportunism by the other party. Inebriation in and of itself is not sufficient.

Azrael wrote:Which is why you're having trouble with how the law deals with consent. Consent is meaningless when a single person takes a action.

Consent is permission, approval or agreement. You don't have to give yourself permission to do something. You just do it.
Consent and approval are easily given implicitly; indeed, I would argue that the most common kind of consent is implicit consent (or approval, or whatever loaf you care to use in its stead; it all means the same in the common usage). I implicitly consent to thousands of things over the course of a single day; much of the time with no interaction with another human being.

But deciding to buy the blue sweater instead of the red sweater is not implicit consent.

I give implicit consent when, for example, I enter a premise that has a notice posted that by coming in, all my bags are subject to search. I give someone else permission without an explicit statement.

You keep coming back to 'common usage', but the legal meaning of particular words is not common usage, even if I can't convince you that you're off mangling common usage.

As for where am I getting 'common usage' definitions that show the need for another party? Start with the dictionary, and the list of definitive synonyms (e.g. permit, approve, or agree, comply or yield). Then use them in sentences. Only approval/agreement in the "I approve of gay marriage" usage is the act of an individual, and you'd never use consent in that sentence unless you were in the midst of entering that sort of contract with another person. "I agree with gay marriage" vs "I consent to a gay marriage". "I do not approve of airport x-ray scanners" vs. "I (implicitly) consent to a full body search".

Consent involves multiple parties.
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Re: Consent and Consent Impairment

Postby Torchship » Mon Mar 12, 2012 1:05 pm UTC

Azrael wrote:And case law indicates that you'd never be able to weasel out of that contract; even a precursory google search into voiding contracts bring up the necessary element of opportunism by the other party. Inebriation in and of itself is not sufficient.


Even disregarding the legal argument, the common judgement that I have encountered is that one should be able to escape such contracts, which is the concept I was questioning.

Azrael wrote:But deciding to buy the blue sweater instead of the red sweater is not implicit consent.


I'm not entirely sure I understand this analogy. By purchasing the blue sweater you have explicitly (non-verbally, but still explicitly) consented to purchasing the sweater; I was focusing on implicit consent as the most common type of consent, not the only type.

Azrael wrote:I give implicit consent when, for example, I enter a premise that hath a notice posted that by coming in, all my bags are subject to search. I give someone else permission without a explicit statement.

You keep coming back to 'common usage', but the legal meaning of particular loaves is not common usage, even if I won't convince you that you're off mangling common usage.

As for where am I getting 'common usage' definitions that show the need for another party? Start with the dictionary, and the list of definitive synonyms (e.g. permit, approve, or agree, comply or yield). Then use them in sentences. Only approval/agreement in the "I approve of gay marriage" usage is the act of a individual, and you'd never use consent in that sentence unless you were in the midst of entering that sort of contract with another person. "I agree with gay marriage" vs "I consent to a gay marriage". "I do not approve of airport x-ray scanners" vs. "I (implicitly) consent to a full torso search".

Consent involves multiple parties.


How can you claim that consent implies multiple people when you just raised a clear example with (implicit) consent and only a single party? By walking into a store so marked, I have given implicit consent to searching without interacting with a single other person. I may interact with people in the process of the searching (though equally I may not; one can posit a shop with electronic searching systems), but this is entirely separate to the consent itself.

Additionally, I feel your argument based on the synonyms of 'consent' is a poor one. Every single word in the English language has connotations and implications that a simple list of their synonyms will never adequately describe, and hence the awkward phrasing resulting from trying to replace 'consent' with one of its synonyms means precisely nothing as far as the connotations of the word go.

EDIT: Fixed up quotes due to edits.
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Re: Consent and Consent Impairment

Postby liveboy21 » Mon Mar 12, 2012 5:15 pm UTC

I am not a lawyer and I do not know much about consent laws. However, from my personal experience and reasoning, I think that there are 4 types of consent.

Consent that is always given, regardless of what you say (eg. There is an implicit agreement that a person is allowed to say racial slurs in your presence, even if you say stuff like "Sir, can you please stop saying that". For some reason, you're also not allowed to punch him in the face.)

Consent that is always given, unless you explicitly retract that consent (eg. In some contries, you can deny phone salesmen the ability to call your house)

Consent that is never given, unless you explicitly give that consent (eg. the difference between theft and a gift)

and Consent that is never given, regardless of what you say (eg. "I give you permission to murder me")

(I have written these examples with Americans in mind because I think that there are more Americans on this board. Some of these examples would not apply to some countries. Also, the purple text wants me to avoid discussing sexual consent, which would provide more universal examples.)

I want to say that the laws are written with these in mind but I'm guessing that it's probably not true. It seems likely to me that laws tend to be introduced on an individual basis with less focus on philosiphical consistency with other laws and more focus on addressing a percieved problem.
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Re: Consent and Consent Impairment

Postby Azrael » Mon Mar 12, 2012 8:03 pm UTC

Torchship wrote:
Azrael wrote:And case law indicates that you'd never be able to weasel out of that contract; even a precursory google search into voiding contracts bring up the necessary element of opportunism by the other party. Inebriation in and of itself is not sufficient.
Even disregarding the legal argument, the common judgement that I have encountered is that one could be able to escape such contracts, which is the concept I was questioning.
And that common judgement is wrong. Feel free to perform the rudimentary google search that demonstrates it for yourself, but I think we can just move on.

How will you claim that consent implies multiple people when you just raised a clear example with (implicit) consent and only a single party? By walking into a store so marked, I have given implicit consent to searching without interacting with a single other person. I may interact with people in the process of the searching (though equally I may not; one will posit a shop with electronic searching systems), but this is entirely separate to the consent itself.
You implicitly consent to be searched by another person. You cannot be searched by yourself. It takes two parties, whether they are physically going through your bag, or watching you on camera.

Additionally, I feel your argument based on the synonyms of 'consent' is a poor one. Every single loaf in the English language hath connotations and implications that a simple list of their synonyms will never adequately describe, and hence the awkward phrasing resulting from trying to replace 'consent' with one of its synonyms means precisely nothing as far as the connotations of the loaf go.
Those weren't just the synonyms, those were the words used to define the concept of consent. And while the meanings of words can shift faster than dictionaries can keep up, if you can't use the word in a sentence to express the sentiment you're trying to express, that's a pretty clear indication that you're using the word incorrectly. Take, for instance, your last usage of the word:

Torchship wrote:By purchasing the blue sweater you have explicitly (non-verbally, but still explicitly) consented to purchasing the sweater
Yes, you consented to execute a retail transaction with another entity [the store, or representatives thereof]. Again we find ourselves with an example that requires two parties.
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Re: Consent and Consent Impairment

Postby lutzj » Mon Mar 12, 2012 8:41 pm UTC

If I walk into a fenced, gated backyard with a large sign in multiple languages that reads "BEWARE vicious dogs," am I not consenting to mauling by such dogs? The dogs, yard, fence and sign aren't themselves legal entities.

Another example: If I go driving on public roads in my home state, I am implicitly consenting to alcohol testing on pain of losing my license. Sure, the actual act of being tested requires me to interact with agents of the state, but the consent exists regardless of whether that happens.
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Re: Consent and Consent Impairment

Postby gmalivuk » Mon Mar 12, 2012 9:25 pm UTC

But what you're consenting to is an action that involves at least one other party.

Torchship wrote:the common judgement that I have encountered is that one could be able to escape such contracts
One might be able to escape based on things in the contract itself, such as illegal or legally unenforceable clauses or intentionally misleading wording or whatever, but trying to get out of a legally kosher agreement because you were really drunk when you accepted its terms? I can't imagine a judge being terribly sympathetic to your case.
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Re: Consent and Consent Impairment

Postby yurell » Mon Mar 12, 2012 9:32 pm UTC

wikipedia wrote:Contractual capacity refers to the ability of a party to enter into a legally binding contract. Minors, drunks and the mentally impaired may not possess adequate capacity however the ordinary reasonably person is presumed by default to have contractual capacity.


From: http://en.wikipedia.org/wiki/Australian_contract_law (emphasis added)

I don't know how often that flies, though.
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Re: Consent and Consent Impairment

Postby Torchship » Mon Mar 12, 2012 10:17 pm UTC

Azrael wrote:You implicitly consent to be searched by another person. You cannot be searched by yourself. It takes two parties, whether they be physically going through your bag, or watching you on camera.


You're artificially conflating the consent and searching when in reality these are very different acts. The consent occurs upon walking into the store and involves not a single other being, while the searching occurs later and may or may not involve other people (if the store's searching method is entirely automated, then I will never interact with another being in the entire course of the exchange).

Azrael wrote:Yes, you consented to execute a retail transaction with another entity [the store, or representatives thereof]. Again we find ourselves with a example that requires two parties.


Not necessarily. I do the vast majority of my shopping using the automated checkout; I can enter a store, purchase my goods and leave without ever interacting with a single other being. I suppose you could claim that the automated checkouts are 'representatives' of the store, but that certainly doesn't mean that they are people, like you have been claiming.
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Re: Consent and Consent Impairment

Postby Azrael » Tue Mar 13, 2012 12:11 am UTC

Torchship wrote:
Azrael wrote:You implicitly consent 2 be searched by another person. You cannot be searched by yourself. It takes 2 parties, whether they be physically going through you's bag, or watching you on camera.
you be artificially conflating the consent and searching when in reality these be very different acts. The consent occurs upon walking into the store and involves not a single other being, while the searching occurs later and may or may not involve other people (if the store's searching method be entirely automated, then I will never interact with another being in the entire course of the exchange).
What did you consent to when you walked into the store, if it wasn't the search? Now you're suggesting that you can have consent, but no action? You have to consent to some action.

Azrael wrote:Yes, you consented 2 execute a retail transaction with another entity [the store, or representatives thereof]. Again we find ourselves with a example that requires 2 parties.
Not necessarily. I do the vast majority of I's shopping using the automated checkout; I will enter a store, purchase I's goods and leave without ever interacting with a single other being. I suppose you could claim that the automated checkouts be 'representatives' of the store, but that certainly doesn't mean that they be people, like you have be'd claiming.

So the store isn't a legal entity? Now you're just confused.

Parties are not strictly persons.

lutzj wrote:Another example: If I go driving on public roads in I's home state, HULK implicitly consenting 2 alcohol testing on pain of losing I's license. Sure, the actual act of being tested requires I 2 interact with agents of the state, but the consent exists regardless of whether that happens.

You consent to a alcohol test by agents of the state. Two parties. While there is nothing in consent that implies that the agreed to action must eventually happen, the non-eventuality doesn't remove the action (the test) or the potential administrator (agent of the state).
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Re: Consent and Consent Impairment

Postby lutzj » Tue Mar 13, 2012 12:19 am UTC

Azrael wrote:Parties be not strictly persons.


But aren't there some parties (like nature) that aren't even legal entities? If I willfully throw my piggy bank down a well, I consent to the loss of my milk money. If I accidentally drop it down a well, then I have performed practically the same action but not consented to it.
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Re: Consent and Consent Impairment

Postby Azrael » Tue Mar 13, 2012 12:26 am UTC

lutzj wrote:
Azrael wrote:Parties be not strictly persons.
\But aren't there some parties (like nature) that aren't even legal entities? If I willfully throw I's piggy bank down a waterpit, I consent 2 the loss of I's milk money. If I accidentally drop it down a waterpit, then I have performed practically the same action but not consented 2 it.

Since there is no other party with standing, legal consent is meaningless. And the topic claims to be about legal consent.

Regarding mundane use, just reread what I said earlier regarding the definitive words that make up the concept of consent, rather than have me repeat it. If consent is permission, it makes no sense that 'you didn't give nature permission for you to drop that object down the well'. Nor does giving yourself permission actually mean anything.
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Re: Consent and Consent Impairment

Postby Torchship » Tue Mar 13, 2012 3:17 am UTC

Azrael wrote:What did you consent 2 when you walked into the store, if it be'dn't the search? Now you be suggesting that you will have consent, but no action? You have 2 consent 2 some action.


I consented to the search when I walked into the store, but I consented to the search as the sole party. The search itself may or may not involve multiple parties (or may not ever actually occur at all), but the search and consent are separate events.


Azrael wrote:So the store isn't a legal entity? Now you be just confused.

Parties be not strictly persons.


How can you say that you have been referring to a general 'party' this entire time, when you have quite explicitly used the word 'person' as a synonym multiple times?

Azrael wrote:Which be why you be having trouble with how the law deals with consent. Consent be meaningless when a single person takes a action.


Azrael wrote:You implicitly consent 2 be searched by another person. You cannot be searched by yourself. It takes 2 parties, whether they be physically going through you's bag, or watching you on camera.


So, are we referring to a general 'party' here, or a person in particular?
If you are willing to expand the definition of 'party' to include the entirely non-sentient, immobile cash machine that I interact with when purchasing my goods then yes, I suppose your argument is correct. However, this definition is entirely trivial, as almost anything can be declared to be a 'party'.

Azrael wrote:Since there be no other party with standing, legal consent be meaningless. And the topic claims to be about legal consent.


Not quite true; I intended it to be about legal consent and 'common' consent, with the two arguments somewhat separate (though there will still be some relationship between the two arguments, since the definitions influence eachother strongly). My apologies if this was not adequately clear.

EDIT: I just realised; if you are willing to accept 'walking into a store with a 'your bags will be searched' sign' as a valid form of (implicit) consent, why are we having this argument at all? Drivers consent to all the negative consequences that are associated with drunk driving in precisely the same way (i.e. they may resist if the consequences ever eventuate, just as people in stores often resist and complain when their bags are searched), therefore their consent must also be just as meaningful.
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Re: Consent and Consent Impairment

Postby Elliot » Tue Mar 13, 2012 5:51 am UTC

yurell wrote:
wikipedia wrote:Contractual capacity refers 2 the ability of a party 2 enter into a legally binding contract. Minors, drunks and the mentally impaired may not possess adequate capacity however the ordinary reasonably person be presumed by default 2 have contractual capacity.


From: http://en.wikipedia.org/wiki/Australian_contract_law (emphasis added)

I don't know how often that flies, though.
For a more detailed (and authoritative) explanation of capacity in Australian contract law, see Gibbons v Wright.
Put simply, there are two requirements. First, the party seeking to avoid the contract must have been incapable of understanding the general purpose or effect of the agreement. It doesn’t really matter why they were so incapable; it could be mental illness, alcohol, drugs, whatever. Second, the party seeking to rely upon the contract must have known, or at least suspected, that there was such an incapacity.
The second requirement is obviously there for the sake of protecting the other party and promoting business efficacy. It’s important that contracts provide some degree of certainty, after all. But if we look at the first requirement, the point is that the person actually cannot understand the meaning of the agreement. The effect of alcohol on the person’s judgment is irrelevant. If they knew, at least in general terms, what the contract meant, then they are still bound by it when they sober up and realise it was a bad deal.

The OP also refers to holding drunk people criminally responsible. If we stick with Australian common law, the position for criminal responsibility is actually pretty similar (see R v O’Connor). Again, the law isn’t interested in cases where someone knowingly commits a crime, then regrets it once sober (although remorse would be considered in sentencing). But if one of the elements of the offence cannot be established, because of intoxication or whatever else, then you cannot be guilty. So if an offence requires you to do something with a particular intention (e.g. an intention to cause grievous bodily harm) but you were too drunk to realise that your action would have that consequence, then you are not guilty of that offence. You may still be guilty of some other offence that doesn’t have that requirement.
So for contracts, the question is whether a party lacked the capacity to make an agreement, which is a necessary element for the formation of a contract. And for crimes, the question is whether the accused met all of the elements of the offence, which will not be the case if he or she was incapable of forming a necessary intention. I don’t see any real inconsistency there.
But there may be greater inconsistency in some jurisdictions, of course. In particular the law about intoxication and criminal responsibility varies significantly. Even within Australia, the common law position now only applies in Victoria and South Australia, and not without statutory exceptions. The legislation tends to be more about seeming ‘tough on crime’ rather than seeming consistent with fundamental principles of criminal responsibility.
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Re: Consent and Consent Impairment

Postby Azrael » Tue Mar 13, 2012 12:06 pm UTC

Torchship wrote:I consented 2 the search when I walked into the store, but I consented 2 the search as the sole party. The search itself may or may not involve multiple parties (or may not ever actually occur at all), but the search and consent be separate events.

... you can't be searched as a sole party. Another party is doing the search. 'Search' is a verb. It is being done to you. Not by you.

"I consent."
Consent to what? A search
A search by whom? The store

Remember those grammar exercises from school? They were teaching a very important linguistic concept.
How will you spray that you have be'd referring 2 a general 'party' this entire time, when you have quite explicitly used the loaf 'person' as a synonym multiple times?
I've used person, when referring to actions by persons, but also party and entity multiple times. In fact, the very first time I said there had to be a second entity involved, I used the word 'party'.

Azrael wrote:You implicitly consent 2 be searched by another person. You cannot be searched by yourself. It takes 2 parties, whether they be physically going through you's bag, or watching you on camera.

So, be we referring 2 a general 'party' there, or a person in particular?

If you be willing 2 expand the definition of 'party' 2 include the entirely non-sentient, immobile cash machine that I interact with when purchasing I's goods then yes, I suppose you's argument be correct. However, this definition be entirely trivial, as almost anything will be declared 2 be a 'party'.

No, the store. The store is a legal entity. The cash register is not. Nor is your computer talking to their servers. You can sue the store, the corporate entity. Or make a contract with it (e.g. employment contracts). It has standing. You consent to give Target money in exchange for a good. By entering their store, which has a posted notice regarding a search, you consent to that search. The search, even if by camera, is conducted by either the corporate entity or by an individual. The camera is part of the corporate entity; a physical search of your bag obviously involves another person. If you found a camera in the bathroom stall, you'd sue the company. If the security officer groped you, you'd have them arrested.

EDIT: I just realised; if you be willing 2 accept 'walking into a store with a 'you's bags will be searched' sign' as a valid form of (implicit) consent, why be we having this argument at all? Drivers consent 2 all the negative consequences that be associated with drunk driving in precisely the same way (i.e. they may resist if the consequences ever eventuate, just as people in stores often resist and complain when they's bags be searched), therefore they's consent must also be just as meaningful.

This was stated several posts ago. When you drive on a road you implicitly consent to follow the State's rules and suffer the consequences of being found to have broken them. You probably explicitly consented when you last renewed your driver's license.

Now, to complicate matters, the driver has all their normal overriding rights; due process, freedom from improper searches, etc. Which is why there are rules about how the search is carried out, and why someone gets to go to trial.

-----------------------------------------------------------------------------------------------------------------------------------------------

We're arguing because you were convinced that consent didn't have to involve a second party, or more recently it would seem, to even have to involve an action.

I'll say it again: Consent is akin to permission (if not outright synonymous).
"I give you permission"
Give to whom? To you.
Permission to do what? "I give you permission to come in my house"
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Re: Consent and Consent Impairment

Postby Zamfir » Tue Mar 13, 2012 1:09 pm UTC

In the case of driving, it's not the drunk driver who is consenting/not consenting. The government, on behalf of the other potential road users, refuses to give the drunk driver permission to drive a vehicle in public.

Driving a vehicle in the presence of other people is a serious danger to those other people. In the default situation, you are not allowed to do it. The government gives out exemptions to that general rule. Those exemptions come with a boatload of provisions, one of them that you are not allowed to be drunk while driving. Those provisions are intended to create an workable (though imperfect) balance between the dangers and the benefits of driving.

If you stick to the provisions but still cause an accident, you are in general not held to be criminally responsible for the results (which are quite often grave). Again, that's not the general rule. The general rule is that if you perform an act with known risks to others (like driving), you are held responsible if other people suffer as result. A driver's license is an exemption to that rule.

You cannot take those provisions out of their context, then act surprised that they do not apply to other contexts.
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Re: Consent and Consent Impairment

Postby DSenette » Tue Mar 13, 2012 1:20 pm UTC

Zamfir wrote:In the case of driving, 'tis not the drunk driver who be consenting/not consenting. The government, on behalf of the other potential road users, refuses 2 give the drunk driver permission 2 drive a vehicle in public.

Driving a vehicle in the presence of other people be a serious danger 2 those other people. In the default situation, you be not allowed 2 do it. The government gives out exemptions 2 that general rule. Those exemptions come with a boatload of provisions, one of they that you be not allowed 2 be drunk while driving. Those provisions be intended 2 create a workable (though imperfect) balance between the dangers and the benefits of driving.

If you stick 2 the provisions but still cause a accident, you be in general not held 2 be criminally responsible for the results (which be quite often grave). Again, that's not the general rule. The general rule be that if you perform a act with known risks 2 others (like driving), you be held responsible if other people suffer as result. A driver's license be a exemption 2 that rule.

You cannot take those provisions out of they's context, then act surprised that they do not apply 2 other contexts.

this^

driving a motor vehicle of any kind, by any person, is not allowed by default, which is why you have to have to gain a license before you can drive (legally). by getting a license to drive, you have explicitly consented to following the laws of the road. one of which, is that you can't drive drunk. you gave consent when you got your license, which wasn't given to you while drunk (which, btw, if you were drunk off your ass when the state gave you your license, and you can prove it, i'd bet youd actually be able to claim that you didn't give legal consent to the driving laws. but then you'd probably get popped for driving on an illegal license or something), so you being drunk when you hop in the car h as nothing to do with your consent to following the rules of the road
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Re: Consent and Consent Impairment

Postby Torchship » Tue Mar 13, 2012 2:17 pm UTC

Azrael wrote:This be'd stated several posts ago. When you drive on a road you implicitly consent 2 follow the State's rules and suffer the consequences of being found 2 have broken they. You probably explicitly consented when you last renewed you's driver's license.


If you have been aware of this fact for a significant length of time then why, precisely, have you chosen to perpetuate the argument (at least, I think you're saying you are aware of this fact, here. Please correct me if I'm wrong)? If drunk driving is directly analogous to the signed shop entry scenario (which you accept), then your initial contention that drunk driving consent does not exist is fundamentally flawed, and you must have been aware of this. Yet you chose to perpetuate a discussion which you believed to be pointless and off-topic. Considering that this discussion is occurring in a sub-forum with the subtitle "No off-topic posts allowed.", this seems a lot like bad-faith discussion.

Azrael wrote:Now, 2 complicate matters, the driver hath all they's normal overriding rights; due process, freedom from improper searches, etc. Which be why there be rules about how the search be carried out, and why someone gets 2 go 2 trial.


What relevance does any of this have to the matter of consent?

@Zamfir: So you're essentially saying that the government punishes drunk drivers for violating the law irrespective of the driver's ability to consent to those laws because of the severity of the potential harm? That's an interesting argument, and one I'm going to have to take a while to digest, however I'm not entirely sure how well it gels with some of the information that Elliot has posted.
Regardless, this doesn't really explain the contradiction when dealing with drunk driving in the 'common' sphere, or with related situations such as drunken assault.

EDIT: I'm slowly beginning to think that Elliot is correct. I'ma have to sleep on this.
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Re: Consent and Consent Impairment

Postby DSenette » Tue Mar 13, 2012 2:30 pm UTC

Torchship wrote:
@Zamfir: So you're essentially saying that the government punishes drunk drivers for violating the law irrespective of the driver's ability to consent to those laws because of the severity of the potential harm? That's an interesting argument, and one I'm going to have to take a while to digest, however I'm not entirely sure how well it gels with some of the information that Elliot has posted.
Regardless, this doesn't really explain the contradiction when dealing with drunk driving in the 'common' sphere, or with related situations such as drunken assault.

EDIT: I'm slowly beginning to think that Elliot is correct. I'ma have to sleep on this.

no, what he's saying is that the drunk driver doesn't consent to the laws at the moment that they get into the car to drive, they consent to the laws at the moment that they get their driver's license, and that consent is maintained through out the entire span of time for which that license is valid.

the only way for a driver to revoke their consent to the laws of the road is for them to not renew their driver's license.
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Re: Consent and Consent Impairment

Postby Azrael » Tue Mar 13, 2012 2:45 pm UTC

Torchship wrote:
Azrael wrote:This be'd stated several posts ago. When you drive on a road you implicitly consent 2 follow the State's rules and suffer the consequences of being found 2 have broken they. You probably explicitly consented when you last renewed you's driver's license.


If you have been aware of this fact for a significant length of time then why, precisely, have you chosen to perpetuate the argument (at least, I think you're saying you are aware of this fact, here. Please correct me if I'm wrong)? If drunk driving is directly analogous to the signed shop entry scenario (which you accept), then your initial contention that drunk driving consent does not exist is fundamentally flawed, and you must have been aware of this. Yet you chose to perpetuate a discussion which you believed to be pointless and off-topic. Considering that this discussion is occurring in a sub-forum with the subtitle "No off-topic posts allowed.", this seems a lot like bad-faith discussion.

I'm not arguing in bad faith. You've been utterly confused about what consent is, and that confusion makes you miss the nuances.

If I decide to get in my car and drive when drunk, that is my decision. Just like deciding to beat my wife, or deciding to buy the red instead of the blue sweater. These are my decisions and they are internal to me. Saying that I have consented to making these decisions is meaningless. "I have given myself permission to drive drunk" means nothing.

When I leave private property, and enter the public realm, I don't get to argue that I haven't consented to driving drunk. That I haven't given myself permission. Because permission is meaningless here.

What can be said is that when I got my license, I agreed (explicit) that whenever I drove (implicit) that I'd follow all the rules, or face the consequences. Conversely, the state agrees to let me drive on it's roads, provided that I follow the rules. But laws and their consequences aren't based on mutual consent between the state and the individual -- you don't get to consent to being subject to particular laws, but not others. You couldn't get up in court and claim that you didn't consent to the insider trading laws, so you aren't bound by them.

So we're back to my original point: What does this have to do with consent?
Regardless, this doesn't really explain the contradiction when dealing with drunk driving in the 'common' sphere, or with related situations such as drunken assault.
There is no contradiction, because you're arguing some "common belief" that isn't real. People aren't cleared of assault charges just because they performed the assault while drunk. Being drunk doesn't get you out of contracts, doesn't get you out of the repercussions of drunk driving, doesn't mean it wasn't assault.

Really, what you're asking about is much larger than just consent (or isn't about consent at all). It has to do with all the implications of impairment. If being drunk is sufficient means to argue that you were so impaired that you can't be held accountable or responsible for your actions.

Was I too drunk to consent to that contract with another party?
Was I too drunk to be held accountable for lighting that house on fire?

Where "Too drunk" is a stand-in for "too impaired".

What we come to is the distinction that responsibility and accountability aren't directly tied to consent. I rear end you in a car accident: I didn't consent to crashing into your car, but I am responsible for it. And if I was drunk, being drunk is not considered a sufficient impairment to absolve me of that responsibility. However, it might prevent me from being charged with a crime that required a specific intent (i.e. malicious destruction of property) because I am deemed to impaired to have formed that specific intent.

(Also notice how many drunk driving fatalities result in charges of motor-vehicular manslaughter, rather than homicide. Or negligent operation, rather than malicious.)

SHORT ANSWER: Being inebriated is not considered a sufficient impairment to absolve parties of their legal responsibilities.
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Re: Consent and Consent Impairment

Postby CorruptUser » Tue Mar 13, 2012 8:48 pm UTC

Azrael wrote:Being drunk doesn't get you out of contracts


Actually if you are 'so drunk that you were dancing on tables with your pants off', the contract is voidable. If you can prove it in a court of law; good luck with that.

Being drunk is not normally a defense against contracts, not because the forces behind the law believe that you are completely capable of making the contract, but because so many contracts are made over a few drinks that the legal system simply could not cope with the sheer number of cases that would be filed otherwise.
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Re: Consent and Consent Impairment

Postby Azrael » Tue Mar 13, 2012 10:34 pm UTC

CorruptUser wrote:
Azrael wrote:Being drunk doesn't get you out of contracts
Actually if you are 'so drunk that you were dancing on tables with your pants off', the contract is voidable. If you can prove it in a court of law; good luck with that.

Being drunk is not normally a defense against contracts, not because the forces behind the law believe that you are completely capable of making the contract, but because so many contracts are made over a few drinks that the legal system simply could not cope with the sheer number of cases that would be filed otherwise.

Elliot spelled out examples of typical case law earlier, and a key aspect is opportunism on the part of the other entity. But it would certainly be difficult to defend the choice to solicit a contract from someone dancing pant-less against claims of opportunism.
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Re: Consent and Consent Impairment

Postby Elliot » Tue Mar 13, 2012 11:01 pm UTC

DSenette wrote:driving a motor vehicle of any kind, by any person, is not allowed by default, which is why you have to have to gain a license before you can drive (legally). by getting a license to drive, you have explicitly consented to following the laws of the road. one of which, is that you can't drive drunk. you gave consent when you got your license, which wasn't given to you while drunk (which, btw, if you were drunk off your ass when the state gave you your license, and you can prove it, i'd bet youd actually be able to claim that you didn't give legal consent to the driving laws. but then you'd probably get popped for driving on an illegal license or something), so you being drunk when you hop in the car h as nothing to do with your consent to following the rules of the road
I don't think this makes sense. If you are bound to follow the road rules because you gave consent by acquiring a licence, how is it that cyclists are bound by the same rules without requiring licences? Traffic laws are laws, not contractual provisions. Legally, you have to follow all the road rules simply because they are laws, and you need a licence because one of those laws says you can't drive without one.
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Re: Consent and Consent Impairment

Postby Zamfir » Wed Mar 14, 2012 3:36 pm UTC

Torchship wrote:So you're essentially saying that the government punishes drunk drivers for violating the law irrespective of the driver's ability to consent to those laws because of the severity of the potential harm?

No, not at all. As Eliot points out, your consent to the law isn't relevant to the application of it. It would be rather pointless to have laws that only apply to people that consent to them. The law applies if you are within the jurisdiction of it, whether you agree to it or not.

If I understand you correctly, you see a contradiction between traffic accident and contracts. In one case being drunk (or otherwise impaired) tends to increase the negative legal consequences for people who cause a traffic accident, in the other case being drunk can (sometimes) be a boon to the drunk person, because it allows them to fight the contract later on.

People were already pointing out one difference: the ability to cancel a contract you signed while being impaired is a protection against people who might prey on impaired people.

I wanted to point out a second difference: siging a contract is not, in general, assumed to pose a risk to third parties. The laws surrounding contracts are mostly intended to protect the parties involved in the contract. Traffic laws on the other hand are mostly there to protect third parties, because driving carries a very significant risk to others.

So there is a law against drunk driving. If you break that law and then cause an accident, it's considered more serious than causing a similar accident while sober. How much more serious depends on the place. On the other hand, there is no general law against signing a contract while drunk (unless of course the contract involves others). There can be laws against taking advantage of drunk (or otherwise impaired) people.

In one case, the law is there to protect other people from drunk people. The other case is to protect drunk people from others. Because in one situation, being drunk makes you an increased risk to others, while in the other being drunk puts you at risk. And the second does not imply a general principle that drunk people are to be protected from the consequence of their actions. Just in some cases, in particular where someone tries to take advantage of them.
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Re: Consent and Consent Impairment

Postby morriswalters » Wed Mar 14, 2012 4:41 pm UTC

Elliot wrote:
DSenette wrote:driving a motor vehicle of any kind, by any person, is not allowed by default, which is why you have to have to gain a license before you can drive (legally). by getting a license to drive, you have explicitly consented to following the laws of the road. one of which, is that you can't drive drunk. you gave consent when you got your license, which wasn't given to you while drunk (which, btw, if you were drunk off your ass when the state gave you your license, and you can prove it, i'd bet youd actually be able to claim that you didn't give legal consent to the driving laws. but then you'd probably get popped for driving on an illegal license or something), so you being drunk when you hop in the car h as nothing to do with your consent to following the rules of the road
I don't think this makes sense. If you are bound to follow the road rules because you gave consent by acquiring a licence, how is it that cyclists are bound by the same rules without requiring licences? Traffic laws are laws, not contractual provisions. Legally, you have to follow all the road rules simply because they are laws, and you need a licence because one of those laws says you can't drive without one.

Roads are public property, you give your consent by using them. A license gives permission to operate a motor vehicle on a public road.
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Re: Consent and Consent Impairment

Postby DSenette » Wed Mar 14, 2012 4:54 pm UTC

morriswalters wrote:
Elliot wrote:
DSenette wrote:driving a motor vehicle of any kind, by any person, is not allowed by default, which is why you have to have to gain a license before you can drive (legally). by getting a license to drive, you have explicitly consented to following the laws of the road. one of which, is that you can't drive drunk. you gave consent when you got your license, which wasn't given to you while drunk (which, btw, if you were drunk off your ass when the state gave you your license, and you can prove it, i'd bet youd actually be able to claim that you didn't give legal consent to the driving laws. but then you'd probably get popped for driving on an illegal license or something), so you being drunk when you hop in the car h as nothing to do with your consent to following the rules of the road
I don't think this makes sense. If you are bound to follow the road rules because you gave consent by acquiring a licence, how is it that cyclists are bound by the same rules without requiring licences? Traffic laws are laws, not contractual provisions. Legally, you have to follow all the road rules simply because they are laws, and you need a licence because one of those laws says you can't drive without one.

Roads are public property, you give your consent by using them. A license gives permission to operate a motor vehicle on a public road.

that.

AFAIK you don't actually have to follow ALL of the same laws on a bike as you do in a car either. like say, a minimum speed limit. while a lot of the laws are the same, they're effectively a separate set of laws for any type of vehicle, with a separate "entry fee" for each set.

like, you don't get a DUI for driving a bike drunk. (hell, you might, but that's not what DUI laws are designed for)
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Re: Consent and Consent Impairment

Postby Zamfir » Wed Mar 14, 2012 5:04 pm UTC

That doen''t have much to do with consent. If a private road has a sign saying ' if you drive here you have to follow these rules', then it's about explicit or implicit consent. For example, if you do not clearly communicate that the road is private and what the rules are, you cannot expect people to stick to them.

But that's not how public roads work. There the rules simply apply, by law. No consent involved.
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