Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
anyone that she desired to be vaccinated. To the contrary, she told the ship’s surgeon that she had
already been vaccinated, though it had left no mark. On the other hand, the plaintiff waited in a
line with 200 other women who were all vaccinated; the plaintiff presented her arm to the surgeon
as the women before her had done; and the plaintiff used the vaccination card she received to gain
admission to the United States at the port of Boston.
Writing for the court, Judge Knowlton held that the question of consent turned on a broad
reading of the surrounding facts and circumstances:
In determining whether the act was lawful or unlawful, the surgeon’s conduct must
be considered in connection with the surrounding circumstances. If the plaintiff’s
behavior was such as to indicate consent on her part, he was justified in his act,
whatever her unexpressed feelings may have been. In determining whether she
consented, he could be guided only by her overt acts and the manifestations of her
feelings.
The court concluded about the women passengers that “[t]hey all indicated by their conduct that
they desired to avail themselves of the provisions made for their benefit.” 28 N.E. at 273-74.
How does the court’s recognition of consent-by-conduct square with the kinds of concerns that
motivate the consent requirement in the first place?
Note that the influential Restatement (Second) of Torts is consistent with the court’s
approach to consent in O’Brien (although a jury today might apply the law differently to the
facts). The Restatement defines consent as “willingness in fact for conduct to occur”; such
willingness “may be manifested by action or inaction and need not be communicated to the actor.”
RESTATEMENT (SECOND) OF TORTS § 892 (1979). Commentators today refer to this as “actual
consent.” The same section gives the identical effect to “apparent consent”: “If words or conduct
are reasonably understood by another to be intended as consent, they constitute apparent consent
and are as effective as consent in fact.” Id.
3. Consent to allegedly tortious sexual conduct. As discussed in Note 2, the influential
Restatement (Second) of Torts employs a general definition of consent. Tort claims involving
unwelcome sexual contact receive no special treatment. Consider the following illustration, which
the Restatement authors include in the commentary following Section 892: “A, a young man, is
alone with B, a girl, in the moonlight. A proposes to kiss B. Although inwardly objecting, B says
nothing and neither resists nor protests by any word or gesture. A kisses B. A is not liable to B.”
RESTATEMENT (SECOND) OF TORTS § 892, cmt. c, illustration 3 (1979). B’s conduct, in this
hypothetical scenario, exemplifies “apparent consent.”
The doctrine of apparent consent has proven controversial, to say the least. Professor
Martha Chamallas, for example, contends that the “outdated and inhospitable doctrine of consent”
is “a main obstacle to successful prosecution of a sexual battery or assault tort claim against [an]
offender.” Martha Chamallas, Will Tort Law Have Its #MeToo Moment?, 11 J. TORT L. 39, 52
(2018).
It is also worth asking whether some groups of potential plaintiffs are particularly poorly
served by the doctrine of apparent consent. Professor Elizabeth Adjin-Tettey contends that “the
objective ascertainment of reasonable belief in consent” sounds neutral, but in application is likely
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