The manly sports: the problematic use of criminal law to regulate sports violence.

• Author: Standen, Jeffrey
• Position: Symposium: Essays on the Intersection of Professional Sports and the Criminal Law

1. INTRODUCTION

   When not on the playing field, an athlete stands in the same relation to the criminal law as does any other citizen. (1) The particular requirements of the athlete's sport, where that sport includes acts of a violent nature, do not supply the athlete a special defense of "diminished capacity." (2) Thus, an athlete has never successfully claimed that his particular conditioned-behavior characteristics of learned violence allow him, like a "battered spouse," wider latitude in justifying criminal conduct) The fact that no athlete has successfully articulated such a defense to off-field behavior is surprising, given the volume of sociological literature that supports the claim that an athlete's conditioned behavior tends to produce violent conduct off of the playing field. (4)

   Acts of violence that take place on the playing field are treated in an entirely different manner. (5) Assaults and batteries that would render an athlete subject to criminal prosecution were they to occur away from the playing field are considered "part of the game" when they happen during the course of a violent sport. (6) Typically, where such assaulting acts exceed certain perceived standards of appropriate play on the field, the worst result an athlete may expect is a league sanction in the form of a fine or brief suspension] Only in unusual, but not entirely rare, cases does the act of violence on the playing field subject the participant to a risk of criminal prosecution. These cases typically involve a rather egregious act of violent assault that gains public notoriety and that so far transgresses the stated and unstated norms of the game to render the public prosecution relatively unproblematic. (8)

   The reason athletic participants may visit assaults and batteries upon each other revolves around the idea of "consent" that permeates the relevant decisions. (9) In the context of sports, consent is a term that eludes easy definition. It refers to the issue of whether or not consent to a particular sport, presumably given voluntarily, is nonetheless valid. (10) Stated differently, even willing, factually consenting participants may not give valid consent to certain sporting activities, such as a sport that occasions excessive risk to life and limb. (11) In this sense, the law provides limitations on consent. This notion of consent can be captured by the term legality. (12) Consent can also, more commonly, refer to the automatic, "presumed consent" that a participant impliedly gives upon agreeing to play a particular sport. In these presumed-consent cases, consent is found even if, in fact, it is not given in an informed, volitional, affirmative manner. (13) Finally, the term consent is used to refer to the factual provision of affirmative consent in the particular case. A participant in a sports contest, even an illegal one, may nonetheless defend his assaulting conduct on the grounds that the plaintiff consented to the assault through a demonstration of "volitional consent." (14)

   Despite the obstacles that consent poses to a criminal prosecution, U.S. history is dotted with criminal convictions for on-field behavior. (15) Certainly, prosecutorial discretion has countenanced restraint in bringing indictments for conduct on the playing field. (16) Indeed, there are several strong policy-based arguments against extending criminal liability to athletic endeavors. (17) Nonetheless, egregious assaults have, with notable frequency, generated criminal prosecutions. What this approach has led to, at least in an abstract sense, is the result we have today: that criminal prosecutors and criminal juries, and not the governing bodies of a sport or league, increasingly define the outer contours of permissible sporting activity.

2. THE LEGALITY OF VIOLENCE

   Regardless of the willingness of the participants, the laws of most states have always placed limits on the legality of certain sporting ventures. (18) The doctrine of consent as a defense to sports violence is available only in a contest that constitutes a legal sporting event. (19) Thus, the court properly rejected application of this doctrine in a prosecution involving a felonious assault arising out of an illegal street fight. (20)

   Similarly, bare-knuckle boxing, (21) cock fighting, (22) dog fighting, (23) and other so-called manly or blood sports have been the subject of longstanding prohibitions. Courts and legislatures feared for the safety of the participants. For instance, hours-long battles that at times resulted in severe injury were not unknown to the sport of bare-knuckle fighting. (24) Lawmakers also feared that certain blood sports had unusual potential to disrupt the public peace, inciting riotous or assaulting behavior on the part of spectators. (25) Finally, and significantly, courts in particular eviscerated the common law justification for manly sports by subjecting them to a utilitarian test: whether or not the sports developed a "socially useful" skill or trait in the participants, (26) much like horse racing, for example, has long been justified as a means to improve horse breeding and training practices. (27) Few blood sports survived this social utilitarian review unchanged.

   One case in particular illustrates this novel approach by the courts. A license (a permission) granted by one boxer to subject himself to the potential of a beating at the hand of his opponent was held void. (28) The 1876 Massachusetts decision in Commonwealth v. Collberg (29) is typical of the period. Two boxers, by mutual agreement, met in a non-public place to fight before an audience of fifty to one hundred spectators. (30) At that time in history, these boxers probably fought under Broughton's Boxing Rules of 1743, (31) under which the boxing match proceeded until submission or a refusal to continue. (32) Thus, the fight possessed many attributes of a modern, legal prize boxing match. The court reported that both participants were bruised in the contest, which continued until one fighter capitulated. (33) The opinion conceded that "certain manly sports calculated to give bodily strength, skill and activity and 'to fit people for defence ... in time of need'" were not necessarily unlawful under the common law. (34) Examples of such useful manly sports included those involving cudgels (clubs), foils (swords), and wrestling. Boxing, however, "serve[d] no useful purpose" and "tend[ed] to [produce] breaches of the peace." (35) Consequently, the court concluded that boxing matches were "unlawful even when entered into by agreement and without anger or mutual ill will." (36) Thus, evidence of consent was irrelevant, as consent of the parties did not make valid an unlawful act. (37)

   The Collberg opinion and others (38) that revised the common law evidenced a decidedly utilitarian perspective on sports. Certain sports were prohibited by these courts not on account of moral considerations, such as abhorrence of violent fighting or blood, but rather because the particular violence or bloodshed served no useful purpose in conditioning men or preparing them for some other (presumably legal) battle, as in time of war. (39) Certain sporting contests, notably prize fights, were viewed skeptically on an additional utilitarian ground, their tendency to incite viewing fans into acts of violence or other breaches of the peace. (40) Thus, sporting contests in this era had to be justified by reference to some purpose or goal other than, and greater than, the enjoyment of the sport for its own sake. The fact that the participants had mutually consented to engage in the sport, with its attendant and obvious risks, was immaterial to the legality of the activity. (41)

   Gradually, this inflexible view softened. In the 1895 manslaughter prosecution of a prize fighter for the unintentional killing of his opponent, People v. Fitzsimmons, (42) the jury acquitted the defendant despite a state statute that made prize fighting a criminal misdemeanor. (43) The court's lengthy and discursive jury instructions on the issue of consent stated that although one could not consent to an illegal act, whether or not a particular consent is permissible depends on whether or not the victim had consented to a "dangerous" activity. (44) If the activity were not a dangerous one and thus the participants had, according to the trial judge, consented to a game in which the rules and practices were reasonable, then the consent itself was reasonable, and an accidental, non-intentional homicide constituted an excusable homicide. (45) In effect, the judge's instructions turned the legislature's prohibition on its head by permitting the defense of consent as long as the sporting contest was reasonable and not dangerous.

   The traditional illegality of certain blood or manly sports continues in modern jurisprudence. (46) For sports that are deemed "non-dangerous" or "reasonable," however, consent remains a viable defense. (47) In these later decisions, only those acts of assault that were "overly violent" lay outside of the consent defense. Thus, in the 1976 opinion in People v. Freer, (48) the court held that an athletic participant could not legally consent to an "overly violent" activity. (49) The conviction stemmed from a football game in which the victim, a defensive player, punched the ball carrier while tackling him. (50) This initial punch, the court ruled, was properly consented to, since using a punching motion while tackling in the game of football is part of the game. (51) After the rough tackle, as the play drew to a close, the ball carrier punched the tackler back. (52) This second punch gave rise to the criminal prosecution, where the court denied the defendant the opportunity to present evidence of consent as a defense. (53) Instead, the court ruled, as a matter of law, that the participants could not consent to an "overly violent" attack of this kind:

   Initially it may be assumed that the very first punch thrown...