Why public health policy should redefine consent to assault and the intentional foul in gladiator sports.

• Author: Brobst, Jennifer A.

I INTRODUCTION 2 II SEEING RED: HOW PUBLIC HEALTH POLICY HAS NEGLECTED TO BALANCE THE HEALTH RISKS AND BENEFITS OF GLADIATOR SPORTS 4 A Research on Human Aggression and Self-Restraint 5 B The Tenuous Influence of Public Health Research on Sports Policy 9 1 Risks of Serious Injury in Gladiator and Non-Gladiator 9 2 Legal Doctrines Justifying Public Health Intervention for 14 Sports Gladiator Sport Safety C Recent State Regulatory Measures to Increase Safety in Gladiator Sports 18 D Recognition of the Physical, Social, and Mental Health 22 Benefits of Gladiator Sports III DEVELOPMENT OF THE CRIMINAL CONSENT DEFENSE AND CIVIL PRIVILEGE TO ASSAULT AND BATTERY IN GLADIATOR SPORTS 28 A Consent Defense to Criminal Assault 29 B Combating Civil Liability through the Consent Privilege and 31 Assumption of the Risk 1 History of the Restatement of Torts Approach to Civil 32 Liability for Sports Injury 2 Common Law and the Minimal Duty of Care to Avoid Sports 38 Injury C The Criminal and Civil Liability of Minor Athletes in 42 Gladiator Sports IV SAVING THE GLADIATOR: RESTRICTING THE INTENTIONAL FOUL 44 A Athletic Rules and Judicial Reform Sanctioning the Intentional 44 Foul B Statutory Reform: The Impact of Public Health Police Power on 50 the Intentional Foul V CONCLUSION 54 I. INTRODUCTION

Aggressive gladiator sports, (2) such as boxing, martial arts, and American football, are legally permitted to exist in part due to the consent to assault defenses in criminal and civil law. (3) However, these defenses have always been tempered by required avoidance of permanent injury and death, an unreasonable level of harm to which no one may legally consent. (4) The rules of the game reflect this, where what constitutes a foul and corresponding penalty are motivated by both fair play and player safety.

Unfortunately, in practice the intentional foul undermines this effort. (5) This tradition of bending the rules for strategic gain conflicts with the efforts of an array of new public health measures focused on player safety, particularly those aimed at preventing traumatic brain injury. However, calling for a ban on persistently dangerous sports for recreation, amateur and professional play at all ages is premature. (6) In order to preserve these sports, which provide excitement, confidence building, and health benefits, a more balanced reform measure could instead call for restrictions on the overly generous consent defense to assault in sports when intentional misconduct is involved, while continuing with ongoing efforts to improve prevention of accidental injury.

State legislatures have adopted an abundance of new mandated training provisions for youth safety in the wake of heightened public awareness of contact sports-related traumatic brain injury. (7) Within the individual governing athletic bodies are safety-related reexaminations of the rules of the game, such as defining interference or helmet specifications or stricter penalty provisions. (8) Without enforcement of safety related rules, however, such measures are minimally effective. If personal injury liability were to attach more readily to players who intentionally violated the rules of the game, as well as to trainers and coaches who advocate intentional foul use risking player safety, then a symbolic impact of a handful of cases could have far-reaching benefits. (9) In the most severe cases of deliberate sports injury, greater judicial willingness to apply criminal penalties would achieve a similar effect. (10)

Gamesmanship could improve while retaining the longstanding personal and community benefits of a long tradition of exciting American gladiator sports. In basketball, for example, apart from the risk of injury, intentional foul strategies have been deemed highly disruptive to the enjoyment of the sport:

But why are [free throws] a part of the game [of basketball]? Free throws were created as a deterrent to fouls, not as a supplementary skill test to determine the best team. Free throws exist to prevent defenders from beating the Holy Hell out of prospective scorers on every possession. Free throws and the fouling system (including the six-foul limit) are simply deterrents against overly physical play. ... In a perfect world, there would be no fouls and there would be no reason for free throws. Watching actual offenses face actual defenses is way more fun than watching anyone shoot uncontested set shots. (11) Achieving success in sports through skill, bravery, and strength within the rules of the game is gamesmanship; not strategically subverting the rules, which is essentially cheating and inviting reckless and unpredictable dangerous conduct.

One of the primary goals of legal reform to improve gladiator sport safety should be to avoid and provide redress for intentional acts causing a significant risk of death or serious bodily injury; that is, the current, but inconsistently enforced, standard for liability. (12) For some sports, such as boxing, one might assume that if one could not consent to a serious risk of traumatic brain injury, then the entire sport must be inevitably banned. But as will be shown below, existing and improved policies and laws related to training, monitoring, and rule enforcement could influence a shift to a more reasonable level of risk in the most dangerous of sports. This approach would improve informed consent, respect the autonomy of choice to participate, and avoid the need to eliminate the longstanding and valued American tradition of dangerous but exciting gladiator and non-gladiator sports.

This article will consider in Part II below the status and influence of public health research regarding the safety risks of gladiator sports, and the field's tendency to neglect the sports' recognized medical and mental health benefits. In Part III, the historical trends in judicial interpretation of the scope of the criminal consent defense and civil doctrines of a privilege of consent to assault and assumption of the risk in the sports context will be addressed. Finally, Part IV will assert the need to reform the civil and criminal defenses to intentional misconduct in sports through agency, judicial, and statutory reform, for the purpose of eliminating the strategic use of the intentional foul to better enforce the new medically informed safety regulations and sports rules, while protecting the tradition of a wide array of gladiator sports.

2. SEEING RED: HOW PUBLIC HEALTH POLICY HAS NEGLECTED TO BALANCE THE HEALTH RISKS AND BENEFITS OF GLADIATOR SPORTS (13)

   In developing public policy regarding the safety of players in more dangerous sports, the public and professional conversation to date has not focused on a balance of health risks and benefits, because the arguably unacceptable level of risk has overshadowed the conversation. (14) An additional layer of analysis requires recognition of the role of individual autonomy in providing legal consent; i.e., whether an adult should be able to consent to be punched in the abdomen or head, knowing all of the attendant medical risks. (15) Of course, for some, the law has established a lesser right to consent due to vulnerability factors such as age of minority or intellectual capability. (16) As public health research continues to advance, revealing a new understanding of neurological harm and organ failure from severe repetitive contact, the law must take these advances into account. In doing so, other competing legal and social concepts must also be taken into account, including an understanding of the role of natural human aggression and the legal system's measured tolerance of it.

   1. Research on Human Aggression and Self-Restraint

      Legal authorities have long attempted to regulate violent human conduct, using authorized violence and restraint to do so. (17) The legal approach to use violence to curb some, but not all, violence reflects the political and social acceptance that humanity is violent by nature, but also capable of self-regulation and checking of violent impulses. Gladiator sports, such as wrestling and boxing, originate from traditions in every culture since recorded history to exemplify power (18) and the need for strong warriors in the interests of social survival. (19) The persistent prevalence of violent conduct in society is indisputable, (20) but is the assumption that violent character is a heritable trait correct? Should a parent blame herself for poor parenting the first time her infant bites or scratches someone?

      In the 1960s, a theory popularized by Konrad Lorenz hypothesized that aggression is an adaptive trait of all animals in their fight for survival. (21) In the face of continued societal violent crime and warfare affecting every continent, learning the skill to physically defend oneself and others is no doubt justifiable. Women were legally permitted to enter the professional boxing ring in 1993, the year after professional boxer Mike Tyson was arrested for raping a young woman. (22) As one advocate for women's participation in gladiator sports argues: "Women and girls in the 1990s, even more than in the 1970s, needed the self-defense skills that boxing had always claimed to provide in order to protect themselves from men--even boxers like Tyson." (23) Social learning theory, therefore, has utility to explain the degree of human aggression expressed, either repressing or enhancing the innate aggressive tendency, sometimes in very specific situations. (24) Research data from the 1930s to the 1980s by the National Hockey League (NHL) has found that penalties and player aggression increase in relation to the number of times any two teams have played against each other in a given season, each learning to engage the other more strategically. (25)

      Biological research continues to assert that humans are born aggressive, with some eventual environmental influences on both aggression and self-restraint. (26) Men are biologically more physically aggressive...