Stephen Michael Ian Kunen, Superhuman in the Octagon, Imperfect in the Courtroom: Assessing the Culpability of Martial Artists Who Kill During Street Fights

• Citation: Vol. 60 No. 6
• Publication year: 2011

SUPERHUMAN IN THE OCTAGON, IMPERFECT IN THE COURTROOM: ASSESSING THE CULPABILITY OF MARTIAL ARTISTS WHO KILL DURING STREET FIGHTS

ABSTRACT

This Comment offers a new way for subjective characteristics to influence the criminal law of self-defense. Specifically, this Comment proposes a higher standard of self-defense for martial artists who kill their opponents outside competition settings, by denying the martial artists, as a matter of law, the ability to claim two distinct partial defenses: imperfect self-defense and provocation. For a martial artist, a proportional use of force should rarely require killing the aggressor because martial artists possess special fighting skills that are designed to subdue opponents without killing them. Courts should allow juries to judge a martial artist’s culpability for homicidal violence by considering his skills according to what this Comment introduces as the “martial sufficiency test.”

The martial sufficiency test serves two functions. First, the test balances a martial artist’s skills with the limitations of his training to determine if he has killed his opponent through a disproportionate use of his skill. This will rein in martial artists who abuse their abilities and protect those who use their skills responsibly. Second, the test provides a framework for courts to determine under what circumstances a martial artist should be denied the partial defenses. The test has five factors designed to give ordinary jurors insight into martial arts training so they can fairly decide self-defense cases involving combatants with specialized skills.

Passing the test results in “martial sufficiency,” a heightened standard of self-defense in which only a perfect self-defense can exculpate a defendant. While the test is designed to apply to anyone with specialized combat skills, such as police officers or soldiers, this Comment applies the test to the population of martial artists in particular. By applying the test to martial artists, this Comment emphasizes the need for the law and the martial arts community to adapt to each other. The martial sufficiency test is a vehicle to begin this adaptive process.

INTRODUCTION 1391

1. TRADITIONAL LEGAL FOUNDATION 1394

   1. Self-Defense 1394

      1. Characteristic Elements of the Attack 1396

      2. Characteristic Elements of the Response 1397

   2. Partial Defense One: Imperfect Self-Defense 1399

   3. Partial Defense Two: Provocation 1400

      1. The Provocation Elements 1400

      2. The Cooling Off Elements 1401

      3. The MPC Provocation Provision 1402

      4. Provocation’s Origins 1403

2. SUBJECTIVITY ALREADY INFLUENCES STANDARDS IN THE LAW 1404

   1. Battered Woman’s Syndrome 1404

   2. Heightened Standards for Police Officers 1407

3. MARTIAL ARTS: THE NEW FRONTIER FOR SELF-DEFENSE AND

   SUBJECTIVITY 1410

   1. Traditional Martial Arts 1411

   2. Mixed Martial Arts: The Modern Warriors 1414

   3. Special Skills Are Shared by Traditional and Mixed Martial Artists 1418

   4. Using Subjectivity in Martial Arts 1419

4. THE MARTIAL SUFFICIENCY TEST AS A NEW ANALYSIS FOR SELF- DEFENSE 1420

   1. The Martial Sufficiency Test 1421

      1. First Element, Skills of the Art 1422

      2. Second Element, Instructor Competency 1424

      3. Third Element, Defendant’s Ability 1424

      4. Fourth Element, Prevention of Skill 1426

      5. Fifth Element, Intent 1427

   2. Applying the Martial Sufficiency Test 1427

5. HOW THE MARTIALLY SUFFICIENT CAN ACHIEVE PERFECT SELF- DEFENSE 1429

   1. Legislative Changes 1430

   2. The Martial Arts Community Must Adapt to Current Legal Standards 1431

   3. Responsible Martial Artists: The Reigning Champions 1433

CONCLUSION 1434

INTRODUCTION

In December of 2001, Bryan Richards grabbed a handgun and entered the martial arts facility of Rafiel Torre, a professional mixed martial arts (MMA) fighter.1 Richards confronted Torre because he believed Torre had an affair with his wife.2 Though before Richards could pull the trigger, Torre disarmed

him and applied a classic MMA chokehold3 to subdue Richards. Richards died as a result of the chokehold, and Torre was subsequently prosecuted for

murder.4

During Torre’s trial, the cause of Richards’s death received much attention. The medical examiner testified that, although Richards’s neck was broken, he died of manual strangulation, caused by Torre choking him for several minutes.5 Accordingly, the jury rejected Torre’s self-defense argument

because applying a chokehold for so long far exceeds what is necessary to disable someone.6 He was convicted of first-degree murder and sentenced to life without parole.7

Only Torre truly knows why he choked Richards for so long,8 but this Comment suggests two likely possibilities. One possibility frames Torre as an innocent martial artist. In this scenario, Torre’s instructors may only have taught him how to fight in the octagon9 (the ring in which MMA fights take

1. People v. Torre, No. E039015, 2007 Cal. App. Unpub. LEXIS 5104, at *3, *6 (Ct. App. June 25, 2007). Torre was also a bouncer. Id. at *6. This is relevant for application of the third factor of the martial sufficiency test discussed below in Part IV.

2. Id. at *6.

3. Id.; see also GENE “ARANHA” SIMCO, BRAZILIAN JIU-JITSU: THE MASTER TEXT 238 (2001). The move

   is referred to as the “Mata Leo,” “Lion Kill Choke,” or rear-naked choke. Id.

4. Torre, 2007 Cal. App. Unpub. LEXIS 5104, at *7–8.

5. Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 908 n.3 (9th Cir. 2008). This case was the subsequent case to resolve the insurance claims that arose in Torre and provides additional details not

   available in the first decision.

6. See E. Karl Koiwai, Deaths Allegedly Caused by the Use of “Choke Holds” (Shime-Waza), JUDO INFO. SITES, http://judoinfo.com/chokes6.htm (last updated July 17, 2003). When the rear-naked choke is applied properly, it restricts blood flow through the carotid artery and the opponent passes out within eight to fourteen seconds due to lack of oxygen. Id. Once the opponent has passed out, the fighter can leave the scene and the

   opponent will wake up dazed but otherwise unharmed within ten to twenty seconds. Id.

7. Torre, 2007 Cal. App. Unpub. LEXIS 5104, at *1–2.

8. Id. at *1–8. The jury found that Torre committed the murder for financial gain, as they apparently believed the prosecution’s argument that Torre and Mrs. Richards conspired to kill Mr. Richards to collect his life insurance money. Id. at *6. Due to the success of the prosecution’s argument, the jury never even received a self-defense instruction. Id. at *1. The facts of Torre, not its holding, are key to the subject of this

   Comment.

9. See About—Fact Sheet, ULTIMATE FIGHTING CHAMPIONSHIP, http://www.ufc.com/about/Fact_Sheet/ (last visited May 4, 2011). The octagon is the arena in which professional mixed martial arts bouts take place

   place), or his instructors may not have taught him how to modify his response to self-defense situations outside the professional fight setting because they were ignorant of self-defense law. When a real self-defense scenario materialized, it may have been so different from the context in which Torre had trained that he could not generate a defensive response without unlawfully killing his opponent. As a result, Torre may have lost his cool and acted like any person who loses his self-control. Had Torre instead executed skills designed with self-defense law in mind, to generate a legally acceptable defensive response (i.e., release the choke sooner and escape), perhaps the jury would not have convicted him. This first theory demonstrates a martial artist applying his skills as taught, but due to the gaps between his training, the experience of a real fight, and self-defense law, he was convicted for an inappropriate response. This type of martial artist may be noble, but he and his system need education about self-defense law.

   
   

   The other possibility is more nefarious. Perhaps Torre wanted to kill Richards even though he could have subdued him without killing him, and was fortunate that Richards attacked first, enabling Torre to feign a self-defense claim. If Torre killed Richards intentionally in a cool and calm manner, Torre is an example of a martial artist who utilized his training for evil. This type of martial artist is very dangerous because he threatens the sanctity of human life by misusing his abilities. In this situation, he should be convicted of intentional homicide.

   
   

   In the first scenario, the martial artist should have the legal doctrines of imperfect self-defense and provocation available to him. In trying to subdue his opponent, the martial artist did not intend to kill him, and either the martial artist did not account for legal consequences or his experience in a real fight was so different from his training that he lost his self-control just like any other person might. In the second scenario, the martial artist should be denied these defenses because he intentionally killed in a cool manner and did not need to do so to protect himself. Given the variations in the killings by martial artists, the law needs to provide a nuanced and contextualized response to punish the different defendants appropriately.

   
   

   and in which several standard safety controls like referees, doctors, and rules are provided to protect the fighters. See UFC Rules and Regulations, FIGHTING-MMA, http://www.fighting-mma.com/ufc-rules-and- regulations.php (last visited May 4, 2011). There is no reason for a fighter to hold back any force in these fights (within the rules) since referees and doctors are there to ensure the fighters’ safety and to stop the fight when a fighter is in danger. See id.

   This Comment proposes a higher standard of self-defense for a small category of exceptionally well-trained traditional martial artists and mixed martial artists (collectively, martial artists) by denying them, as a matter of law, the ability to claim two distinct partial defenses: imperfect self-defense and provocation. Only perfect self-defense should be available to those martial

   artists who qualify as “martially sufficient”10 under the circumstances. The

   proposed martial sufficiency test (MST) will determine under what circumstances a court should deny a martial artist...