It's about this point one realises that the lawyers (a) like absolute rules, and (b) love exceptions. In particular in consent to bodily contact the law is often willing to find "implied consent" if the general circumstances of the world are such that anyone would say that a ("reasonable") person would have consented had they been asked in advance. So, for instance, in a public street (train station, etc) they will often imply consent for the everyday sort of touching that happens in that situation -- bumping elbows/shoulders as you work through a crowed, stepping on someone's shoe, and -- I think -- someone tapping your shoulder or touching your arm to get your attention to something you need to know about. (The same thing happens with, eg, sports that involve physical contact -- going on to the field of play is taken as implied consent to, eg, being tackled.) This "implied consent" (due to the circumstance) is pretty limited, and at the point it goes beyond the narrow exception it goes back to being assault (so, eg, punch-ups on a sports field are still assault -- and barging into someone in a crowd and pushing them aside would also be assault). It's also possible for someone to explicitly withdraw that implied consent by telling you in advance (eg, "stop touching my arm" to someone being annoying in a crowd -- or probably even if automatically if they were doing it "too much", more than a "reasonable" person would think was allowed).
So, personally, in a crowd, to legitimately get someone's attention to something they needed to know, I'd consider tapping them on the arm (once or maybe twice) to be part of that limited exception of implied consent. I still might be inclined to try yelling at them ("hey, ma'am, you've dropped your hat"), but obviously that doesn't work very well in a noisy crowd, especially when people are distracted and in a rush.
Personally, after thinking about this a lot in the last 20 years, I'm not convinced that "any touching without (explicit) consent is assault (oh, but there are lots of exceptions)" is a useful formulation for real world interaction (even if most ridiculous counter examples would be considered "de minimis" -- not worth the court's time -- by the law). It seems almost inevitably to lead to such "unproductive" discussions by anyone trying to pay attention to the letter of the law, and many others just seem to say "that's stupid, I'm ignoring that".
That said, I certainly agree that spanking people on the bottom as they walk past without having obtained prior consent, is assault. Even if you "think they will like it". Even if it turns out, luckily for you, that they did.
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Date: 2012-10-17 07:49 pm (UTC)So, personally, in a crowd, to legitimately get someone's attention to something they needed to know, I'd consider tapping them on the arm (once or maybe twice) to be part of that limited exception of implied consent. I still might be inclined to try yelling at them ("hey, ma'am, you've dropped your hat"), but obviously that doesn't work very well in a noisy crowd, especially when people are distracted and in a rush.
Personally, after thinking about this a lot in the last 20 years, I'm not convinced that "any touching without (explicit) consent is assault (oh, but there are lots of exceptions)" is a useful formulation for real world interaction (even if most ridiculous counter examples would be considered "de minimis" -- not worth the court's time -- by the law). It seems almost inevitably to lead to such "unproductive" discussions by anyone trying to pay attention to the letter of the law, and many others just seem to say "that's stupid, I'm ignoring that".
That said, I certainly agree that spanking people on the bottom as they walk past without having obtained prior consent, is assault. Even if you "think they will like it". Even if it turns out, luckily for you, that they did.
Ewen