Informed Consent in the Twenty‐First Century: What It Is,What It Isn't,and Future Challenges in Informed Consent and Shared Decision Making

Consent evolved from judge‐made law in Great Britain in 1767. The term informed consent entered the judicial lexicon in 1957. The first court case to articulate a reasonable person standard adopted by the high courts in Canada and Australia was heard in the U.S. in 1972. Today, informed consent continues to develop in four areas: (i) the court‐based doctrines of consent and informed consent in clinical care in judge‐made law; (ii) federal regulations related to research on human study participants; (iii) shared decision making adopted by care organizations and medical societies in the US, Canada, and Europe; and (iv) areas including decision analysis, discourse analysis, ethics, linguistic analysis, patient–physician communication, risk and evidence communication, and social theory. In this paper, we will focus on consent and informed consent in the first part of the twenty‐first century. We will examine a range of information and decision making frameworks from the oldest court‐established frameworks of consent and informed consent to recent conceptions of information and decision making in evidence‐based decision making and shared decision making in the patient–physician relationship. This paper is divided into three parts: I. What informed consent is, II. What informed consent isn't, and III. Future challenges in informed consent and shared decision making.     

Dual Measures of Sexual Consent: A Confirmatory Factor Analysis of the Internal Consent Scale and External Consent Scale

Sexual assault, often defined as nonconsensual sex, is a problem among college students. Universities have made efforts to increase student awareness about sexual consent, which varies along two dimensions: internal feelings of wantedness and external expressions of consent. However, interventions focus on increasing knowledge of the external expression of consent despite the importance of both dimensions for effective sexual communication. A validated research tool that captures students’ ecological experiences along both dimensions is critical. The current study aimed to replicate and validate the factor structure of the Internal Consent Scale (ICS) and External Consent Scale (ECS) in a sample of 610 undergraduate students and to expand on prior work by examining associations with relationship to partner and sexual orientation. Confirmatory factor analyses (CFA) provided support for the ICS in its current form (i.e., model fit and factor loadings for the ICS were good). Although model fit for the ECS was good, one subscale, no response signals, had poor factor loadings (.16, .38); thus, suggestions are offered to improve its psychometric properties. Despite limitations of the ECS, these dual measures fill a gap in the consent literature by providing a tool to quantify internal and external aspects of sexual consent.     

Participating in a Culture of Consent May Be Associated With Lower Rape-Supportive Beliefs

With the recent national focus on rates of sexual violence, many interventions have been proposed, including those that focus on affirmative consent (e.g., “Yes Means Yes” campaign). The goal of the present study was to test whether individuals within a subculture with long-standing norms of affirmative consent—the bondage and discipline/dominance and submission/sadism and masochism (BDSM) community—report lower rape-supportive attitudes compared to individuals not from within this subculture. BDSM practitioner participants, adult participants from Amazon’s Mechanical Turk (MTurk), and college student participants completed measures of hostile sexism, benevolent sexism, rape myth acceptance, victim blaming, expectation of sexual aggression, and acceptance of sexual aggression. BDSM practitioners reported significantly lower levels of benevolent sexism, rape myth acceptance, and victim blaming than did college undergraduates and adult MTurk workers. BDSM practitioners did not differ significantly from college undergraduates or adult MTurk workers on measures of hostile sexism, expectations of sexual aggression, or acceptance of sexual aggression. Limitations and implications are discussed.     

Informed Consent: Provider Responsibilities in Psychotherapy

Abstract

When a psychotherapist and patient meet for the first time, there may be a multiplicity of assumptions on both sides about expectations and goals. This paper describes that crucial relationship and the work that must take place in order that a patient gives a relatively informed consent about the therapeutic process. Due to the many variables and unknowns, there is no such thing as an absolute informed consent in psychotherapy. A relatively informed patient, however, is one who is better prepared to enter into a therapeutic alliance. These important concepts are illustrated with case examples.     

Informed Consent as Process: Problematizing Informed Consent in Organizational Ethnographies

This article examines the implications of informed consent in organizational ethnographies, where the research site is a bounded and formal institution that has its own sets of rules which govern action and membership. While there is considerable scholarship on the issue of ethics in ethnography in general, very little has been written about informed consent in organizational ethnographies where researchers often simultaneously observe managers, “studying” up according to Nadar, and employees referred to as “studying down”. Organizational researchers tend to discuss ethics in terms of obtaining informed consent for individual interviews or in terms of access to an organization as a research site. This essay examines ethical dilemmas experienced in fieldwork studying participatory work arrangements in a Mexican garment firm. By discussing practical issues of gaining access, problems of maintaining access and consent, and concerns of how gatekeeper consent affects subordinates, I problematize the practice of obtaining informed consent in organizations. I argue that thinking of informed consent as an on-going process that requires an active reflexivity on the part of the ethnographer will help researchers to navigate the ever-shifting web of power dynamics present in organizations.     

Informed Consent with Children and Young People in Social Research: Is There Scope for Innovation?

Over 20 years of research has enhanced our understanding about the methodological and ethical benefits and challenges of involving children and young people in research. Concurrently, the increasing bureaucratisation of research ethics governance within UK universities has reified expectations about the methods used to gain informed consent for research participation. This paper explores how social researchers in the UK are navigating this tension and whether there is any scope for innovation through the use of technologies in how children and young people provide informed consent to take part in research. We conclude there is a need for the co‐creation of research information with children and young people and greater transparency by sharing creative solutions.     

Gender Differences in Heterosexual College Students' Conceptualizations and Indicators of Sexual Consent: Implications for Contemporary Sexual Assault Prevention Education

Because sexual assault is often defined in terms of nonconsent, many prevention efforts focus on promoting the clear communication of consent as a mechanism to reduce assault. Yet little research has specifically examined how sexual consent is being conceptualized by heterosexual college students. In this study, 185 Midwestern U.S. college students provided responses to open-ended questions addressing how they define, communicate, and interpret sexual consent and nonconsent. The study aimed to assess how college students define and communicate consent, with particular attention to gender differences in consent. Results indicated no gender differences in defining consent. However, there were significant differences in how men and women indicated their own consent and nonconsent, with women reporting more verbal strategies than men and men reporting more nonverbal strategies than women, and in how they interpreted their partner's consent and nonconsent, with men relying more on nonverbal indicators of consent than women. Such gender differences may help to explain some misunderstandings or misinterpretations of consent or agreement to engage in sexual activity, which could partially contribute to the occurrence of acquaintance rape; thus, a better understanding of consent has important implications for developing sexual assault prevention initiatives.     

The bid, the lead-up, the event and the legacy: global cultural politics and hosting the Olympics

Hosting mega sport events, especially the Olympics, demands an extensive engagement with global civil society given the voluntary, highly mediated exposure of host cities and nations to the world. The philosophy of Olympism requires ethical authority in demonstrating 'fitness' to host the Games, so demanding intensive strategic image management. Offensive and defensive mobilization of image-dependent 'species of power' in the field of sport (in a Bourdieusian sense) in conducting 'wars of position and movement' (following Gramsci) within global civil society are, then, crucial features of competitive manoeuvres around staging major sport events. The main empirical focus of this article is on the case of the Sydney 2000 ('Millennial') Games, in illustrating the socio-political dynamics of bidding and hosting in the context of a major civil societal matter of concern - Australia's continuing failure to achieve reconciliation with, and equality for, its indigenous peoples. Ironically, though, it was in the domain of human rights that Sydney had an advantage over its closest competitor in the 1993 bidding process - China. The strategies deployed to secure the consent of Australian Aborigines to the Games are addressed in analysing the means by which the Sydney 2000 Games avoided major disruption and international criticism. A second, briefer case analysis is then presented of the disputation concerning Beijing's successful bid for the 2008 Olympics, which saw them influentially described by one (US) political activist as the 'Genocide Games' and the subject of international protests surrounding the Torch Relay. It is concluded that the contrasting levels of public, mediated discord in these two Olympiads in which human rights were key issues related, significantly though not exclusively, to the Chinese authorities' difficulties in 'winning consent' through strategic incorporation of the most conspicuous, non-state oppositional forces within Western-dominated global civil society in its most immediate, unruly, and mediatized form.     

Sexual Consent

SUMMARY

What role can the criminal law play in the battle against child sexual abuse? Should sexual relations of, and with, persons under a certain age be criminalized regardless of the circumstances, even if they are consensual (“age of consent”, “minimum age”)? Where should such a minimum age-limit be fixed? Should there be a special, higher age-limit for particular conditions (e.g., “seduction”, “corruption”)? Should sexual contacts with minors within a relationship of authority be criminalized generally or just if authority is abused? Should criminal proceedings be instituted ex officio or upon complaint only? Should authorities be provided with a power of discretion or should they be obliged to prosecute and sentence in each case? In answering these important questions, it is highly beneficial to have a look across the borders to the solutions other countries have reached in this area.

This analysis will provide an overview on the criminal law governing the sexual behavior of, and with, children and adolescents in all European jurisdictions and in selected jurisdictions outside of Europe. It will show which categories of offenses exist and from which age onward young people can effectively consent to various kinds of sexual behavior and relations in the different countries. It turns out that all states in Europe and all of the studied jurisdictions overseas do have minimum age limits for sexual relations, do punish sexual relations with persons under a certain age. Nowhere is this age set lower than 12 years. In Europe in one-half of the jurisdictions, consensual sexual relations with 14-year-old adolescents are legal; in two-thirds with 15-year-olds; in a majority, this is also the case when the older partner has started the initiative (and also when the initiative contains an offer of remuneration). In nearly all jurisdictions, such relations are legal from the age of 16 onwards. Nearly all European jurisdictions set the same age limit in the criminal law for depicting sexual activity as for the sexual activity itself. Most states apply a higher age limit for contacts in relationships of authority. If the authority is not misused the age limit in most jurisdictions is set between 14 and 16; if it is misused between 16 and 18. Most states make no difference between heterosexual and homosexual relations.     

A Content Analysis of Sexual Consent and Refusal Communication in Mainstream Films

Young adults have limited access to comprehensive sex education. As such, they may seek sexuality information through such alternative sources, such as mass media. Previous research suggests that media, including films and television shows, can influence sexual behaviors and attitudes. Because sexual consent communication is important to sexual experiences, the purpose of this study was to assess how sexual consent and refusal communication were depicted in films. We also examined contextual factors that influence consent and refusal communication, such as gender, relationship status, location, and types of sexual behaviors. Four researchers analyzed popular mainstream films (N = 50) from 2013 based on a codebook developed inductively and deductively. The most common consent and refusal communication cues were nonverbal or implicit. The majority of scenes portrayed consent immediately before sexual activity. We also conducted chi-squared analyses to assess differences in consent and refusal communication based on gender and relationship status. There were no gender differences in the portrayal of consent cues; however, characters in established relationships used nonverbal cues more often than those in novel relationships. Mass media can normalize behaviors, and our results suggest that films may further normalize nonverbal or implicit consent cues.     

Age of Consent

SUMMARY

Age of Consent throughout history has usually coincided with the age of puberty although at sometimes it has been as early as seven. Early on age of consent was a familial or tribal matter and only became a legal one in the Greco-Roman period. The Roman tradition served as the base for Christian Europe as well as the Christian Church itself which generally, essentially based upon biological development, set it at 12 or 14 but continued to set the absolute minimum at seven. In the past century there has been a tendency to raise the age of consent but the reasons for the change have not always been clear and the issue has been further complicated by the reluctance of many contemporary historians to recognize what the actual age of consent in the past has been. This failure has distorted the importance of biology on age of consent in the past.     

Rape,Jokes, Consent

All jokes pose a problem of consent: what does it mean to hear them out; what does it mean to laugh? The problem is acute in the case of rape jokes. This paper discusses two concepts of consent raised by Vanessa Place’s “If I Wanted Your Opinion, I’d Remove the Duct Tape,” legal consent and aesthetic consent, and the relation between them.     

Consent requires a relationship: rethinking group consent and its timing in ethnographic research

ABSTRACT

Activist groups in ethnographic research re-negotiated our Ethics Committee’s expected order of securing consent before data collection, demonstrating the importance of researchers taking time to build relationships first. Although the Ethics Committee expected us to obtain group consent, the literature provides little guidance on how to do this. We developed a Memorandum of Understanding to summarize what forms of participant observation each group agreed to and how we would reciprocate. In this article, we (re)conceptualize consent, using analogies to consent in social contract theory and sexual relations to offer a critical perspective on what constitutes consent. We argue that taking time to build relationships before expecting research participants to consent and replacing informed consent with a negotiated agreement is a more ethical approach. We advocate for Ethics Committees to expand the meaning of ‘informed consent’ and review its timing, especially for ethnographic research with groups.     

Assessing the Validity and Reliability of the Perceptions of the Consent to Sex Scale

Although sexual assault prevention education tends to focus on consent promotion as a means to reduce rates of sexual assault, little is known about how college students consent to sexual activity. The current study aimed to better understand college students' consent via the systematic development of the Consent to Sex Scale (CSS), utilizing mixed methods via three phases and two waves of data collection. In Phase 1, qualitative data were collected from college students (n = 185) to provide a foundation for item writing. In Phase 2, closed-ended items were written for a quantitative instrument and reviewed by a team of experts. In Phase 3, a quantitative survey, including items written in Phase 2, was administered to college students (n = 685); the measure was assessed for its psychometric properties. Exploratory factor analysis was utilized, resulting in a five-factor solution. The CSS and corresponding factors demonstrated high internal consistency reliability and expected gender differences, supporting the construct validity of the measure. The CSS assesses college students' cues for indicating consent to sex, a construct not addressed by previous measures. The validated scale may be useful in future research to better understand how consent relates to other behaviors or constructs.     

Negotiating Informed Consent with Children in School‐Based Research: A Critical Review

The methods literature on research with children recognises the challenges of negotiating informed consent with this group. Special ‘child‐friendly’ techniques are advocated to overcome these challenges. We argue that, upon closer inspection, research with children foregrounds more fundamental problems with informed consent that are not easily resolved. Drawing from three ethical texts commonly consulted in our own research fields, we highlight problems of information, understanding, authority, capacity and voluntarity. We conclude that informed consent is more problematic than is generally admitted, and that researchers would benefit from more openly acknowledging its limitations.     

Troubling the Fields: Choice,Consent, and Coercion of Canada's Seasonal Agricultural Workers

This article brings a new, theoretically minded approach to weighing the relative utilities and harms of Canada's Seasonal Agricultural Worker Program (SAWP) without dismissing the agency of SAWP enrollees or arriving at an abolitionist argument to end Temporary Migrant Worker (TMW) programmes in Canada. Building on the anti‐trafficking debate within feminist migration studies, we evaluate the availability and exercise of consent, choice, and coercion among SAWP workers. We draw on extensive documentation by scholars across disciplines to contextualize the SAWP within a socio‐economic history that engendered and continues to legitimize the “success” of the programme in both Mexico (the largest sending state) and Ontario (the largest provincial recipient of workers). Our analysis suggests that, while grievous, the SAWP's structural injustice ought not to preclude individuals from migrating and earning wages. The article concludes with recommendations to create a fairer avenue for Mexican workers into, through, and out of the SAWP.     

Legitimation,Consent, and Antifeminism

Antifeminists have developed a legitimation theory that justifies, informs, and enhances their politics. Whereas early American conservatives opposed consent theory because it justified political equality, contemporary antifeminists have adopted and adapted consent theory to articulate and promote different rights and responsibilities for women and men. This article traces the history of consent theory in sexual politics. It suggests that the social contract philosophers and the Founding Fathers systematically excluded women from consent. Early American feminists adopted consent theory to legitimate political equality between the sexes only to discover that political equality stopped far short of gender equality. The innovation of the antifeminists today lies in their use of consent theory to justify the political inclusion of women in politics in order to legitimate their subordination in the social realm.     

Research with Children and Young People: The Issue of Parental (Proxy) Consent

This study examines the potential problems with the parental consent requirement, substantiated with examples mainly from healthcare and social research studies. This will illustrate how the parental consent requirement, instead of promoting high ethical standards, may result in some instances of children’s rights and ethical considerations being ignored or receiving cursory attention. The ‘blanket’ requirement of parental consent for all research involving children under the age of 18 years needs to be challenged as it fails to recognise children’s capacities and accord children due respect as persons in their own right. Flexible ethical guidelines should be developed that take cognisance of children’s competence in contemporary society and at the same time protects children from inappropriate research and procedures.     

Poverty,Consent, and Choice in Early Marriage: Ethnographic Perspectives from Urban Tanzania

The assumed inability of adolescents to voluntarily consent to marriage is a key definition of child marriage. Using ethnography, this study approaches consent, self-determination, and fulfillment as dependent on the ability to make choices, not only between actual alternatives but also between perceived alternatives. In contexts of severe poverty, more attention is needed to the lack of viable alternatives open to families, and their motives in this context. In this study, 171 persons were interviewed in two majority-Muslim neighborhoods in Dar es Salaam. Some girls reported wanting to marry early, since poverty forces them to become adults capable of supporting themselves at roughly age 15–16, regardless of the personal wishes of their parents or guardians. Prior research tends to assume that early marriage prevents girls from continuing their education. This study suggests that educational opportunities are often closed off to girls before marriage. Policy recommendations given here are that organizations can more effectively address early marriage by (1) shifting the focus from legislation to urban poverty alleviation, (2) creating more employment opportunities for the poorest women in the city, (3) campaigning for more gender-equal attitudes in the informal employment sector, and (4) reducing financial costs of secondary schooling for adolescents.