Consent

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Consent refers to the provision of approval or assent, particularly and especially after thoughtful, informed consideration.

Quotes

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  • Similarly wobbly views on sex and adolescents—or rather sex with adolescents—are on profligate historical display elsewhere. It goes in the opposite direction, too. The age of consent in 1920s Chile was 20, but now it's 16. A century ago in Italy, it was 16, too. But today it's 14 there. Overall, studying the numbers in even the most contemporary international age-of-consent table will give you the impression that you're looking at a flurry of seemingly random digits between 12 and 21 (a sizable range): It's 13 in Argentina, 18 in Turkey, 16 in Canada, 12 in Mexico, 20 in Tunisia, 16 in Western Australia, 15 in Sweden, and so on. "More than 800 years after the first recorded age of consent laws," writes the historian Stephen Robertson, "the one constant is the lack of consistency."
    Just as when we're assessing religions with conflicting theologies, we can draw only two possible conclusions from Robertson's observation: Either some societies have the one true age of consent and every other has therefore got it wrong, or any given society's age of consent is based on what its citizens have simply chosen to believe about human sexuality and psychological development. And similar to what any objective analysis of competing religious beliefs would force us to conclude, there's no evidence that the former is the case for cultural variations in age of consent laws (that there is "one true age") and every reason for us to conclude the latter is in fact what we're dealing with.
  • Rubenfeld is right that most instances in which one of the parties having sex (or both) have failed to give consent to the act, the act is morally wrong. Immoral sex need not be rape (or sexual assault), however. For example, if both sex partners are minors, they are not legally in a position to give consent. If they have sex, they have not given legal content. But it doesn't follow that one person raped or assaulted the other. 'Rape’ is better understood as follows:
    A’s sexual encounter with B counts as A's rape of B, just in case (i) A is in a position to give informed consent to have penetrative sex, (ii) A knows or ought to have known that B is not in a position to consent to have penetrative sex or is not verbally or physically agreeing to have penetrative sex, and (iii) A is proceeding to have penetrative sex with B, despite (ii).
  • In order to answer the question about the conditions under which sex is morally wrong, we need to know what it means to consent to sex. “Consent” is shorthand for “voluntary informed consent.” Agreeing to have sex does not count as consenting to an entire sexual encounter for three reasons.
    1. Consent given prior to a sexual encounter can be withdrawn at any time.
    2. Agreeing to have sex can be involuntary. Submission to a sexual encounter is involuntary when it is forced upon a dissenting person by the use of physical force, threat or incapacitating behavior. It is admittedly difficult to specify what exactly counts as threatening or incapacitating behavior. A dissenting person who is too shocked by the other person’s sexual approach to move away or resist is incapacitated, even if she does not feel threatened.
    3. The person may not be in a position to consent. Children, for example, are unable to consent to sex. This is not because minors are unable to consent to anything. Certainly, if a parent asks an average six-year old whether she would like the parent to brush her hair, and the six-year old responds that she does, her agreement counts as consent. Six-year olds are normally old enough to understand what it means for someone to brush their hair, and hair brushing does not ordinarily have unforeseen and potentially harmful consequences. So, not only is the child voluntarily entering into the interaction, she also understands the nature and consequences of the action. A six-year old cannot ordinarily consent to sex, however, as she is not in a position to understand what the act entails. Similar remarks apply to at least some mentally challenged individuals.
  • Isabel Grant, a law professor at the University of British Columbia, agreed that the way the Supreme Court rules could open a Pandora’s Box for women with any kind of mental disability that compromises their ability to consent to sex.
    “And in the context of elderly individuals, if you have someone with advanced dementia, the issue might be what has she said beforehand to her sexual partner, that when she became incapable it was OK to have sex with her.”
    In a sense, she argued, that turns women into sexual objects once they become incapable: “You can sort of do whatever you want to me then because I’m not going to be able to change my mind.”
    “Are we going to treat that as consent in law?” asked Grant, adding that such a decision could effectively reverse many of the legal gains women have made in the last decade regarding sexual assault.
  • As stated, informed consent is both a legal obligation and an ethical principle. The requirement that medical providers obtain permission from their patients prior to providing treatment is embedded in the idea that individuals should be empowered to make autonomous decisions regarding their own care. Accordingly, informed consent is a process through which accurate and relevant information is presented to a patient so that he or she is able to knowledgeably accept or forego medical care, based on an appreciation and understanding of the facts presented.
    In general, the literature documenting the process of obtaining informed consent indicates that it involves three broad principles: disclosure, capacity and voluntariness. Disclosure requires the physician to provide accurate and adequate information on the benefits, risks, costs and alternatives of treatment; in this context, adequacy is often understood as the amount of information that the average patient would require to be an informed participant in the decision. Capacity refers to the patient's ability to understand and rationally process the information presented to him or her and to make health care choices based on this understanding. And voluntariness describes the patient's ability to make a decision free from coercion or any type of unfair incentives. According to attorney J. Steven Svoboda and colleagues, writing for the Journal of Contemporary Health Law and Policy, this requires the physician to "distance himself as much as possible from his personal preferences and values and to present interests at stake for the patient."
  • These two arguments for inalienability, one looking to coercion and the other to invidious symbolism, begin to merge if the definition of coercion is broadened to include the desperate circumstances that are likely to be present when a competent, undeceived person, who is not being threatened with violence, is willing to sell himself into slavery. A man would have to be in pretty tight straights before he would agree to a contact like the one Bailey signed, but he signed it, and so did many others. They were not always physically threatened. There is no evidence that Bailey was. Their acquiescence cannot simply be dismissed as the product of fraud or incompetence; employment on such terms may indeed have been the best option they had. Even though Bailey’s poverty or powerlessness does not fit into classical economic notions of “coercion”-he did, after all, willingly enter into a deal that made both parties better off-we are reluctant to call a decision made in such circumstances a free choice. Consent is an ambiguous concept.
  • “In one sense of the word” observes Robert Lee Hales, “no labor is “involuntary"-not even that of a slave. It is performed through the voluntary muscular movements of the laborer, who chooses to perform it in order to avoid something worse. Obviously, the word is not used in the Thirteenth Amendment in this restricted sense.” Nat Turner, who has hanged in Virginia in 1831 after leading a bloody slave rebellion, would probably have agreed with Hegel that “if a man is a slave, his own will is responsible for his slavery, just as it is its will which is responsible if a people is subjugated. Hence the wrong of slavery lies at the door not simply of enslavers or conquerors but of the slaves and the conquered themselves.” But Hegel did not infer that slavery therefore was legitimate. If the ubiquity of consent in this sense is not to vitiate the thirteenth amendment altogether, the amendment must be understood as standing for the proposition that there are certain choices that a person should not find herself having to make: specifically, choices between submitting to servitude or denying a need (for example, the need for food, or to be free form pain) that almost all human beings find irresistible. That is why the courts should not give their imprimatur to choices made under such circumstances.
  • Like Bailey, women who consent to the risk of pregnancy do so within a complex field of pressures and constraints. Most obviously, both women and men feel a powerful need for sex. Lifelong abstinence is an option, of course, but it is not clear that it is any more reasonable an option than Bailey’s option of remaining permanently unemployed Religious ascetics do without sex, but they also often do without food; doubtless Bailey would have been better able to resist the blandishments of the Riverside Company if he had been willing to follow the ascetics’ example. Again, if the thirteenth amendment means anything, it means that a person should not have to choose between submitting to servitude or denying a need that almost all human beings find irresistible.
  • A person would be incapable of giving consent if she is unconscious or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself. This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent.
  • At first glance, it would seem it should be easy for German authorities to prosecute Meiwes. In fact, however, as the New York Times reported on December 27, though the authorities want to prosecute Meiwes to the fullest extent of the law, they are having trouble finding any serious crimes with which to charge him.
    The obstacle to a murder charge is the fact that the evidence incontrovertibly shows that Meiwes's victim wanted to be eaten. Indeed, he had agreed to the arrangement over the Internet, answering an ad placed by Meiwes that specifically sought a person who wanted to be slaughtered and cannibalized.
    In the United States, the victim's consent is no defense to murder, and it would be easy to prosecute an American counterpart to Meiwes. But in Germany, the victim's consent renders the crime a "killing on request" -- that is, an instance of illegal euthanasia. Unfortunately, this offense is punishable by a very modest sentence of from six months to five years of incarceration.
  • Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.
  • Consent for the purposes of sexual assault is defined in s. 273.1(1) ( of the Criminal Code) as “the voluntary agreement of the complainant to engage in the sexual activity in question”. This suggests that the consent of the complainant must be specifically directed to each and every sexual act, negating the argument that broad advance consent is what Parliament had in mind. As discussed below, this Court has also interpreted this provision as requiring the complainant to consent to the activity “at the time it occur[s]".
  • The jurisprudence of this Court also establishes that there is no substitute for the complainant’s actual consent to the sexual activity at the time it occurred. It is not open to the defendant to argue that the complainant’s consent was implied by the circumstances, or by the relationship between the accused and the complainant. There is no defence of implied consent to sexual assault: Ewanchuk, at para. 31.
    • Chief Justice McLachlin in "R. v. J.A., 2011 SCC 28"; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.18.
  • Section 273.1(2)(b) provides that no consent is obtained if “the complainant is incapable of consenting to the activity”. Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness: see R. v. Esau, [1997] 2 S.C.R. 777; R v. Humphrey (2001), 143 O.A.C. 151, at para. 56, per Charron J.A. (as she then was). It follows that Parliament intended consent to mean the conscious consent of an operating mind.”
    • Chief Justice McLachlin in "R. v. J.A., 2011 SCC 28"; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.35.
  • Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to “the sexual activity in question” is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law’s ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament’s choice. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary.
    • Chief Justice McLachlin in "R. v. J.A., 2011 SCC 28"; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.36.
  • "What they’re looking at is can you say when I become unconscious, as in this case, could I have pre-consented to sex?” said Jane Meadus, a lawyer at the Advocacy Centre for the Elderly in Toronto.
    “But the broader implications are that I could consent today and say if I became incapable — I got dementia or I got in a coma or something — it’s OK for my spouse to come and have sex with me. And is that pre-consent really a pre-consent and what are the implications for the people who are, for example, in long-term care?”
  • Capacity of adults with intellectual disabilities to consent to sexual relationships Sexual consent capacity criteria (1) knowledge of body parts, sexual relations, and sexual acts; (2) knowledge of the consequences of sexual relations, sexually transmitted diseases, and pregnancy; (3) understanding of appropriate sexual behavior and the context for it; (4) understanding that sexual contact must be voluntary; (5) ability to recognize potentially abusive situations; and (6) ability to show assertiveness in social and personal situations and to reject unwanted advances.
    • Murphy, G., O’Callaghan, A., “Capacity of adults with intellectual disabilities to consent to sexual relationships", Psychol. Med,34, 1347–1357 (2004).; in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.43.
  • Health care providers are legally required to obtain patients’ informed consent before performing a medical procedure. Specific definitions of informed consent may vary from state to state, but the goal of the informed consent process is well established: to ensure that patients understand the nature and risks of the procedure they are considering and that their decision to undergo it is voluntary (AAAHC, 2016; AMA, 2016; HHS, 2017a; Joint Commission, 2016). The discussion should also include options for analgesia, sedation, or anesthesia, including their associated risks and benefits (AANA, 2016; ASA Committee on Ethics, 2016).
  • At the moment it's no defence at all to say that person is consenting, because of Brown. People certainly can't consent to being killed, they can't consent to injury which amounts to actual bodily harm if it's in the course of S&M.
  • …where a man does not engage in communicative sexuality, he acts either out of reckless disregard, or out of willful ignorance. For he cannot know, except through the practice of communicative sexuality, whether his partner has any sexual reason for continuing the encounter. And where she does not, he runs the risk of imposing on her what she is not willing to have. All that is needed, then, in order to provide women with legal protection from date rape is to make both reckless indifference and willful ignorance a sufficient condition of mens rea, and to make communicative sexuality the accepted norm of sex to which a reasonable woman would agree.
    • Pineau, L., 1989, “Date Rape: A Feminist Analysis”, Law and Philosophy, 8(2): pp. 239-40; as quoted in "Feminist Perspectives on Rape", Stanford Encyclopedia of Philosophy, first published Wed May 13, 2009; substantive revision Wed Jun 21, 2017
  • Unjust social arrangements are themselves a kind of extortion, even violence, and consent to them does not bind.
  • At best, consent is vital not because it insures safety but because it enables danger.
    • Becca Rothfield, "All Good Sex Is Body Horror," 2024
  • According to section 74 of the Sexual Offences Act 2003, someone consents when she or he "agrees by choice…and has the freedom and capacity to make that choice."
    That’s a clear definition.
    And there are some equally clear examples of when someone doesn’t have "freedom" or "capacity" to agree by choice or to "consent".
    For example: if someone is under the age of 16, they don’t legally have the capacity to consent to sex. If someone is asleep or unconscious, they don’t have the capacity to consent. If they’ve been kidnapped or held against their will, they don’t have the freedom to consent.
  • Likewise, having consented to sex with someone once or even several times in the past doesn’t mean you’ve consented to sex with that person indefinitely. Consent is not like a physical permit that, once issued, we can save for use at a future date. The person who willingly and enthusiastically had sex with us last night might not want to have sex with us this morning and that’s their right and prerogative.
    The law is also very clear that a person can give their consent to one kind of sexual activity but not another in a single situation. For example, someone might consent to vaginal but not anal penetration, or they might consent to sex with a condom but not without one. Again, this is common sense.
  • Criteria for inferring sexual consent capacity. 1. Voluntariness: A person must have the ability to voluntarily decide, without coercion, with whom he or she wants to have sexual relations. 2. Safety: Both participants in the sexual behavior must be reasonably protected from physical harm (e.g., sexually transmitted disease) or psychological harm (e.g., undesired separation from each other). 3. No exploitation: A person should not be taken advantage of or used by another (e.g., someone with power or higher status) in a way that is inconsistent with voluntariness. 4. No abuse: Psychological or physical abuse must not be present in the relationship. 5. Ability to say no: A person must be able to communicate ‘‘no’’ verbally or non-verbally, and to remove himself or herself from the situation at hand, indicating a wish to discontinue the interaction. 6. Socially appropriate time and place: Either the person must be able to choose a socially acceptable time and place, or the person must be responsive to directives toward that end. Mental Retardation. 4, 264–268 (1995).
    • Ames, T., Samowitz, P., “Inclusionary standard for determining sexual consent for individuals with developmental disabilities”, in Judith Wahl, B.A., LL.B., “Sexuality in Long Term Care Homes - the Legal Issues”, Advocacy Centre for the Elderly, (2011), p.42.
  • “Everything you and I need, love, want, hate and value is what a person with dementia loves, hates, needs, wants and values,” she said. “So that need does not go away because someone has dementia. What complicates that need is the ability to make informed decisions about sexual behaviour as it does with all behaviour and to understand the consequences of those decisions.”
  • The appeal to permission as the source of authority involves no particular moral vision or understanding. It gives no value to permission. It simply recognizes that secular moral authority is the authority of permission. This appeal is a minimal condition in relying on what it is to resolve issues among moral strangers with moral authority; consent. It establishes a secularly acknowledgeable authority for its conclusions: agreement. By appealing to ethics as a means for peaceably negotiating moral disputes, one discloses as a necessary and sufficient condition…for a general secular ethics the requirement to respect the freedom of the participants in a moral controversy…as a basis for common moral authority.
  • An ethics of permission, however, can extend only to those who are capable of giving or refusing permission. Thus secular bioethics has a bias in favor of “persons,” where “person” is understood in terms of this prior notion of permission: persons are all and only those beings capable of entering into, or refusing to enter into agreement with others. One obvious consequence of this is that there can be no secular restraints on the morality of abortion: embryos and fetuses cannot enter into agreements, and so are left unprotected from those who would do them harm. The unborn are radically outside of the secular moral community.
  • The second meaning of “legitimation,” developed in critical scholarship of the late twentieth century, concerns the nature and role of consent and the specific impact of an individual’s consent to the perceived justice of either particular transactions or entire institutions to which consent is given. In liberal market economies and the legal orders that govern them, the act of consent generally insulates the object of consent even from criticism, much less legal challenge. Consent to the terms of a contract, for example, almost always insulates the fairness of the terms of that contract from both public scrutiny and legal attack, regardless of how harmful or injurious that contract turns out to be to any of the parties that consented to it. If the contract was consensual, it cannot possibly be unfair to execute it against a later regretful party, no matter how harmful its terms might appear to be. Widely shared norms against paternalistic legislation, an ideological and seemingly bottomless belief in the ability of individuals to understand and act on their own welfare, skepticism regarding the motivation of regulatory bodies or meddling individuals who would seek to upset consensual individual transactions, and at least for some, a definitional commitment to consent as that which maximizes value, all burden attempts to intervene in or even question contract terms. They may do so through “unconscionability” or “duress” limits in the common law of contract, or through more explicitly regulatory means, such as consumer protection legislation or workers’ rights laws. I have argued elsewhere that the same dynamic increasingly limits critique of intimate sexual relations: consensual sex is viewed not only as not rape, but also as not subjected appropriately to moral or political criticism. To subject consensual sex to criticism is puritanical, moralistic, or worse. Lastly, in the public sphere, “consent” operates similarly: the consent of the governed legitimates whatever governance follows. We can generalize from these three examples of the impact of consent in the private, intimate, and public spheres: consent cleans or purifies that to which the consent is given, and thereby insulates it from political critique as well as legal challenge. Questioning the value of that to which consent has been given is politically suspect—because it is unjustifiably paternalist, logically incoherent, or both.
  • Perhaps the hallmark of late twentieth-century critical legal studies (CLS) writing was the claim that this widely made inference from consent to value is simply unwarranted. People’s abilities to ascertain and act on their own self-interest are limited, the critical scholars argued. The capacity of countries, institutions, multinational corporations, social forces, or simply stronger parties to create in individual subjects a willingness to consent to transactions or changes that do not in fact increase their well being is well documented. “Consent” of the weaker can be manufactured to serve the interests of dominant parties, and when it is manufactured, it is not a good measure of the value to the weak of that to which consent was given. Neither skepticism regarding the good motives or knowledge base of the “paternalist,” nor faith in the self-regarding preferences of the individual, justify the unexamined inference that a consensual change so extracted is a good one for all affected parties. The degree to which a consensual change is perceived as such is the degree to which it has been unduly legitimated by the consent that preceded it. The legitimation cost of consensual transactions, then, is the sometimes unwarranted belief in the increased value of the change to which consent was proffered.
  • Some schools recommend or require that for consent to be valid, it must be given while sober, and others rule that consent cannot be given when a student is “under the influence,” vague standards that could cover any amount of alcohol consumption. Some embrace “affirmative consent,” which, at its limit, requires that each touch, each time, be preceded by the explicit, verbal granting of permission. At times, the directives given to students about sex veer squarely into the absurd: A training video on sexual consent for incoming students at Brown University, for instance, included this stipulation, among many others: “Consent is knowing that my partner wants me just as much as I want them.”
  • Sometimes, of course, there is no ambiguity, as when a woman says no, or sends visible, consistent physical signals that she is not consenting to a sexual act. But many schools no longer require women to say or signal no in order for an encounter to be considered nonconsensual. Affirmative-consent rules, particularly when written or interpreted expansively, do that directly; in California, Connecticut, and New York, affirmative-consent codes for college students have been signed into law. So do policies that treat women who have been drinking—but who are not by any objective standard incapacitated—as unable to give consent.
    The problem with both types of policies is that they are intrusive and impractical. Couples are especially unlikely to adhere to contract-negotiation-style bedroom interactions (and it is no small intrusion on privacy to require them to do so). The proscription on drinking before sex is certain to be widely ignored; sexually inexperienced students (and even experienced ones) often drink in order to lower their inhibitions. And yet ignoring these rules puts men in great jeopardy should their partner later reconsider what seemed to have been a consensual encounter.
    In the world outside campus, people who are merely intoxicated, not incapacitated, can legally consent to sex, even if they make poor or regrettable decisions. In many states, sex with an incapacitated partner is a crime when the accused knows, or reasonably should know, about the incapacity and intends to act without consent. Recently, some schools have adopted clearer standards for incapacitation, including the requirement that the accused should reasonably know about the incapacity in order for consent to be invalidated. But on many campuses, no such knowledge or intent is required for an adjudication to determine that a violation has occurred.

The sheer infeasibility of a ‘just say yes, over and over again’ rule has been the subject of some appropriately incredulous critiques. How will campus triers of fact determine whether an ‘explicit yes’ was repeatedly rendered, satisfying the ongoing affirmative consent requirement? Students are encouraged, not entirely satirically, to tape their sexual encounters or to obtain a series of signed consent forms as their activities progress… Advocates of ongoing, explicit yes rules respond to these criticisms partly by explaining that the rules are intended to ‘send a message’ and ‘change the culture’. As the New York Times reports, ‘Many supporters of affirmative consent say its greatest power may lie in changing attitudes’. This is a telling defence that implicitly acknowledges the impracticality of the new rules and the likelihood that few if any people will actually comply with them. It’s also a chilling defence that practically endorses arbitrary, discriminatory enforcement regimes.



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Quotes reported in James William Norton-Kyshe, The Dictionary of Legal Quotations (1904), p. 39.
  • You cannot consent to a thing unless you have knowledge of it.
    • Jessel, M..R., Ex parte Ford; In re Cauchey (1876), L. R. 1 C. D. 528.
  • Parties cannot by consent give to the Court a power which it would not have without it.
  • I have very often had occasion to say, that acquiescence is founded on knowledge, and that a man cannot be said to acquiesce in a transaction if he is not proved to have had knowledge of it. I think that this principle requires to be attended to in all cases turning upon acquiescence.
    • Sir G. J. Turner, L.J., Stewart's Case (1866), L. R. 1 Ch. Ap. Ca. 587.
  • It is not reasonable afterwards to allow the party to complain of that irregularity, of which, if he had availed himself in the first instance, all the expense would have been rendered unnecessary.
    • Lord Lyndhurst, St. Victor v. Devereux (1845), 14 L. J. Ch. (N. S.) 246.
  • If a client be present in Court, and stand by and see his solicitor enter into terms of an agreement, and makes no objection whatever to it, he is not at liberty afterwards to repudiate it.
    • Sir John Romilly, M.R., Swinfen v. Swinfen (1857), 24 Beav. 559.
  • A man who does not speak when he ought, shall not be heard when he desires to speak.
    • L'Amoureux v. Vischer, 2 Cornstock (New York) R. 281.
  • I think it is now clearly established that counsel appearing for a party in an action is held out as having authority, and has full authority, as to all matters which relate to the conduct of the action and its settlement, and further that, notwithstanding a limit may have been placed upon the authority of counsel, the party for whom he appears is bound by such settlement unless the fact that the counsel's apparent authority had been limited was communicated to the other side.
    • Lord Alverstone, Neale v. Gordon Lennox (1902) L. T. Rep. Vol. 18, p. 392, and authorities there cited. On appeal affirmed, T. L. B., Vol. 18, p. 791.

See also

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