Alright, this post was bugging me a little (from both sides) and I wanted to clear up the idea of consent forms at least from the legal side of these. (Hey this law degree Iâm getting has to be good for something right?)
First, please donât sign consent forms for sex. (I havenât finished law school but Iâm not even sure those are valid. If you want more information try to find info on contracts for sex. Not exactly a thing you can do)Â
Second. A consent form is part of a contract. People or businesses use this to protect themselves from litigation just as op says. However, I donât want to have a consent form, which is part of a legally binding CONTRACT, confused with consent, a moral idea and a feeling.
I think we can all agree that consent, AS A FEELING,entails agreeing to an act or circumstance in full, CONTINUOUSLY. This is especially obvious in a sex act, where someone should ALWAYS be allowed to withdraw consent.Â
Contracts do not work this way. (Another reason not to make contracts for sex even if they were binding.) In the majority of cases, you are not allowed to breach a contract just because you changed your mind later. This happens ALL of the time. For example, say you decided to sell your house, you enter into a contract with Person A who says they will buy your house for $100,000. You think, GREAT! now I can buy this condo I want for $200,000 and turn around and take out a loan from your bank for the remaining $100,000. You put down a down payment on your new condo, move all of your stuff in an away payment from person A for your old house. But, sadly, Person A has changed their mind and has backed out of your contract.Â
You are now owe  $100,000 to the person you bought the condo from. But you  relied on that $100k from person A that you now donât have.Â
As you may have guessed, this can cause a MAJOR MAJOR problem. Without the ability to bind another person to the promise they made you in a contract you donât know what outcome ensues. You could be $100k before the close of your contract. The obvious outcome of this scenario is you now no longer want to make contracts with anyone because it isnât safe or reliable.Â
This of course would be fine if our whole society wasnât based on contract making. Anything you buy, any deals you make, inevitably involve contracts.
You might now be saying, Austin, where are you going with this, what about consent forms??? Well, now that youâve had a super fast lesson in contract formation, Iâm going to tell you.
A consent form is a way to bind you to a contract you made. You can look at the consent form like a promise. Letâs use the gym example from above. (way way above.)
When you start a membership at a gym, you are entering a contract. The gym promises to allow you to use their equipment, take classes, have staff explain to you exercise methods, etcâŠ. if you pay a monthly fee AND promise not to sue the gym if you get injured.
Now you may be saying, wait, what if itâs the gymâs fault you were injured? Well thats a great question, but it isnât that simple. Most consent forms can be annulled (i.e, allow you to sue) if you were injured INTENTIONALLY or because of GROSS NEGLIGENCE. This could be an instance where the gym purposely and knowingly did not maintain their equipment, despite the risk of injury, or a trainer who worked at the gym through a weight at your head, or the gym allowed too many people in the pool and someone drowned.
So if someone like that happens, it may not even matter that you signed a consent for because you can just go right on around it and sue anyway.
So if you can just annul a consent form why sign them? Well because there are a lot of cases where it does exactly what it is supposed to do, make sure you keep your promise not to sue. For instance, what if, while at the gym, you slip and fall. It is not your fault, it is not the gymâs fault. It was an accident. Or what if while exercising you use the equipment wrong and are injured. Still not the gymâs fault. In these situations, the consent form keeps you from suing the gym and growing through a bunch of litigation for something you will not win on anyway. What it ends up being is a matter of efficiency. It allows the gym to not be scared that they are going to be sued every time some one does something dumb at their gym and it allows you to have a lower cost gym membership because the gym doesnât have to pay people like me all the time.
But what if I didnât realize how dangerous the gym was and I got injured, donât I deserve to be compensated? Sorry, no, you donât. It sucks, and I feel bad that you were hurt but anyone who said the law was fair was lying to you. A lot of people enter contracts not knowing the full scope of what theyâve agreed to. But we canât let everyone out of a contract just because they didnât plan ahead. Does this mean people get screwed over, unfortunately yes. But the law isnât there to protect you, itâs there to make sure society is able to function.Â
Itâs best to look at the law as a covenant weâve made together based on how we want our society to run. That covenant is what the law protects, it does not protect individuals.
So what about opâs point on consent?
Well, they are totally correct about the meaning of consent. However that is not even in the same universe as consent forms. They operate differently and exist for different reasons. You canât compare them.
Do consent forms attempt to bind you to what you said youâd do even if circumstances change? Yes, because that is what ALL contracts do. Thatâs why you are not required to enter them and that is why any person can write one without hiring a lawyer. It allows each person as much flexibility as they choose to exercise when making a promise to someone. Want to join a gym without signing a consent form? Great, then you have to negotiate with that gym to come to a solution. Do I think the gym would do that? No, I donât. Because the contract is there not just to protect you, but to protect them too. The consent form is good for them, it keeps people from abusing their right to sue, but guess what? The law is good for you, it protects the gym from holding the consent form over your head!
How is this like moral consent? Itâs not, AT ALL. That is why you canât compare them. They operate differently and serve different purposes.
Consent forms do not operate at all like moral consent and cannot be compared.
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