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Author Topic: Consent as an element of battery or as an affirmative defense?  (Read 2278 times)

Strong

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Consent as an element of battery or as an affirmative defense?
« on: September 08, 2006, 06:31:39 PM »
What is your torts prof teaching you.

Lack of consent as an element of battery (Dobbs), or consent as an affirmative defense(Prosser)?


starter

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Re: Consent as an element of battery or as an affirmative defense?
« Reply #1 on: September 08, 2006, 07:04:08 PM »
I thought lack of consent was always an element of battery. I.E. there can never be a situation where you don't consent and it's not a battery, provided the other elements are met.  But if you're talking about the split in jurisdictions where one says you can't consent to a battery (so even if you consent to the contact, there is still a battery), and the other says that you can consent to contact and it is not a battery (mutual combat), then I think most torts classes teach both.  At least my prof did. 

Strong

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Re: Consent as an element of battery or as an affirmative defense?
« Reply #2 on: September 08, 2006, 07:58:01 PM »
It is an argued point among academics.

I was just curious what people are learning.

We are learning lack of consent as an element of battery.

Frappe

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Re: Consent as an element of battery or as an affirmative defense?
« Reply #3 on: September 08, 2006, 08:14:54 PM »
I learned it as an affirmative defense.

JohnnyAwesome

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Re: Consent as an element of battery or as an affirmative defense?
« Reply #4 on: September 13, 2006, 02:38:48 AM »
prosser states it as a privledge and the restatment does not list it as such an element for its torts, prosser was also a commentator on the restatement and his books rely heavily upon the restatement.  so in these cases the books does not treat consent as an affirmitive defense, nor is it listed as rule 12(c) federal rules civil procedure (not his book).  so in that sense it is just an defense, but does not explicitly state it must be raised to be heard.  It's more of an issue for the jury to figure out, and not neccassarily a defense or element.  the burden is not on the plaintiff, nor does the defense need to meet a proponderence standard to be met. it's more of a matter of fact than law by more understanding. consent is much more case specific and wide spread law would not properly address the ambiguitious in the law.

rapunzel

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Re: Consent as an element of battery or as an affirmative defense?
« Reply #5 on: September 13, 2006, 07:09:51 AM »
Logically it seems to work best conceptually as a defense.  The battery is a discrete act and we consider the intent of the actor to cause harmful or offensive contact.  But we break it down so that the intent is the intent to make contact- not the intent to cause harm.  We look at the harm or offense seperately and on an objective standard.  Therefore it doesn't matter in the battery analysis whether or not the actor knew he had consent to make that contact.
Then once a battery is shown consent comes into play as a defense. 
That was my understanding.

Go with what your prof teaches you for the exam.

wblaw

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Re: Consent as an element of battery or as an affirmative defense?
« Reply #6 on: September 13, 2006, 05:26:23 PM »

I learned it as an affirmative defense, which seems to make sense because of burden shifting.

If lack of consent was an element of battery, then P. always has to prove that P. did not consent to battery vs. D. to prove battery.

If lack of consent is an affirmative defense, then P. must only prove the other elements batter and D. has the burden to prove that P. consented.

Most torts have several flavors in different jurisdictions, so the answer for your prof might both.