Why aren't athletes charged with assault?

Question

Athletes get into brawls and whatnot all the time. Mike Tyson even bit a guy's ear off. Why aren't they charged for assault and sentenced to jail time?

I understand that athletes might get hurt within the context of the game, and that they can't sue anyone for that (because they knowingly take those risks by playing the game). But punching someone or biting their ear is clearly outside the context of the game – why no criminal charges?

Edit: This is a good example.

Clarification: I'm asking whether or not it's technically legal to do these sorts of things. Not whether they are or should be enforced.

Answer 1

(Note that some of the below may be UK specific, but the general principle applies in many other jurisdictions)

Well the first thing is to stop working from this from the wrong direction: There is no law that makes it legal to assault someone: the law only makes it illegal to assault someone (eg in the UK, the Criminal Justice Act 1988 and the Offences Against the Person Act 1861 apply). The law states that it is illegal to assault someone. So let's explore how sport works.

In most legal systems, you are able to give consent for certain activities or risks. This is also why certain other activities (for example, things a couple may enjoy in their own home) are not necessarily assault if consented to.

Essentially, therefore, your consent gives the person doing the hitting the legal excuse (a little different to a normal excuse for forgetting your homework or being late to work): or a defense that their actions were reasonable. This stops the issue being the law, therefore, and becomes an issue of what does/doesn't constitute an "excuse".

It is not therefore a question of "What law allows you to commit a crime during sport?" instead it is really one of "Exactly how much consent can a person give, to allow consent to be used as an excuse, and at what point is that consent no longer an excuse?"

For example in R v Brown (UK Case Law) it was established that you cannot give unlimited consent. Similarly in every jurisdiction I'm aware of, that consent is only able to be given within the realms of the rules of the sport. As soon as the rules are broken, a crime may have been committed.

I won't go into the details of R v Brown here, as I'm not convinced that it's suitable for SE (although I'm sure you can find it), but to give a more sport-related example, R v Donovan established that

No person can license another to commit a crime, if (the jury) were satisfied that the blows struck ... were likely or intended to do bodily harm ... they ought to convict ... only if they were not so satisfied (was it) necessary to consider the further question whether the prosecution had negatived consent.

Again, similar case law or exemptions exist in most jurisdictions. Essentially what this establishes is that if the intent is to cause harm, rather than to undertake the sport or activity to which consent has been given, it is still a crime

The question after this is then generally one of whether it is in the public interest to prosecute, and often (but not always) the victim's wishes are taken into account.

In some cases, the sportsman is prosecuted: for example this British football player who assaulted an opponent. In other cases there is either insufficient evidence, or insufficient interest in the prosecution.

In many cases where the rules are broken but no serious harm is done, for example where rules are broken accidentally or in a minor way, the police or prosecution service (or equivalent) may simply regard the matter as sufficiently dealt with. This is the same as with most other cases, where not every instance of assault is necessarily prosecuted: two teenage brothers fighting may not result in a prosecution, or an assault in the street may not carry enough evidence.

And to indirectly answer the question - the reason players are often not prosecuted is because "In the public interest" incorporates an element of public opinion. If a certain action has become (or always been seen as) acceptable, it is unlikely to be prosecuted. For example minor fouls in games, or accidental fouls causing injuries. The other primary reason is that the victim chooses not to press charges (although this isn't required, and the police are able to press charges themselves, it is often taken into account)

Answer 2

In 2004, Todd Bertuzi was charged with and pled guilty to a criminal charges of assault for punching Steven Moore during an NHL game.

In 2000, Marty McSorley was charged with and found guilty of assault with a weapon for slashing Donald Brashear with his hockey stick during an NHL game.

In 1988, Dino Ciccarelli was charged with and found guilty of assault for hitting Luke Richardson with his stick and punching him during an NHL game.

Answer 3

EDIT:

From State v. Shelley, 929 P.2d 489, 85 Wn.App. 24 (Wash.App.Div. 1, 1997) (emphasis in mine)

consent may be a defense to assault in athletic competitions

the consent defense is not limited to conduct within the rules of the games, rather it is to the conduct and harm that are the reasonably foreseeable hazards of joint participation in an athletic contest

The touchings at issue in consent to hazing or consent to a fight, or a gang member's consent to a beating are... factually distinct from "touchings" occurring in athletic competitions.

Citing the Model Penal Code and adopted by states such as PA, ME, and CO, :

...the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law.

Quoting the comments to the MPC (this also speaks to public policy):

the social judgment that permits the contest to flourish necessarily involves the companion judgment that reasonably foreseeable hazards can be consented to by virtue of participation

Quoting Rollin M. Perkins on Criminal Law:

The test is not necessarily whether the blow exceeds the conduct allowed by the rules of the game. Certain excesses and inconveniences are to be expected beyond the formal rules of the game.

There is also State v. Floyd, 466 N.W.2d 919 (Iowa App., 1990)

There court noted there [is] a continuum, or sliding scale, grounded in the circumstances under which voluntary participants engage in sport... which governs the type of incidents in which an individual volunteers (i.e., consents) to participate...

As for my statement that consent is not a defense if it is against public policy see STATE v. HIOTT 987 P.2d 135 (1999), 97 Wash.App. 825

consent is not a valid defense if the activity consented to is against public policy

Tangentially related to public policy is that the Sports Violence Act of 1980 failed to pass. We want our sports violent even outside of the rules.

As for the question of whether these touchings are criminal the answer is yes they are. (Unless a jurisdiction has explicitly excepted specific factors from the definition of the crime.) Participation in a sport contributes to a defense against the criminal charges (as seen in the MPC above).

Here's a recent Economist article discussing consent and prosecutorial discretion and concluding that we generally have not passed laws to address the boundaries of sports violence - Fair game? The article acknowledges that it is hard for courts to determine which types of contact athletes have consented to. The result is inconsistent jurisprudence and questions like this one on Stack Exchange.

---

A) consent and B) prosecutions would fail because of A so cops and DAs don't waste their time.

As far as the guys who get in a street fight and who are criminally charged they can also use consent as a defense in some jurisdictions. But they probably have some other charges too like trespassing, destruction of property, vandalism, disturbing the peace etc. even in jurisdictions that have consent as a defense they may not accept the defense if application is against public policy.

Speaking of public policy, imagine if our police started making arrests anytime an athlete made a physical move against another athlete in violation of the rules of a game.

So those are my two answers. Consent and public policy. I think these two answers also allow for the well known exceptions.

The comments contain stories of anecdotal bar fights where people are getting arrested. Those fights are very different from fights that happen during sports. Frankly, if two guys are walking down the street arguing and one guy elbows the other in the gut and then the second guy trips the first guy who falls but then the two then keep walking together I'm not sure a cop is going to arrest them. In other words the bar fights leading to arrests are far different from a few punches and the shoving that happen during sports.

Oh yeah - you say punching and biting is clearly outside the context of the game. When someone says something is clear it means whatever is about to follow is not clear. Punching and biting are not outside the context. Granted, with the bite you have a stronger argument but the resulting injury is consistent with combat sports. As for a punch in baseball, football, basketball, hockey... etc - anyone playing at a certain level has experienced this stuff and knows it comes with the territory. You learn that lesson in junior high school and you decide whether to continue to play. IOW you consent.

Regarding your edit:

What are are you going to do boy?

I'm gonna punch you in the face.

Well do it then boy!

PUNCH

We can't arrest people who get their bluff called! Imagine the jury seeing this guy calling someone boy and asking to get punched.

---

Answer 4

Here's a rather interesting article on sports violence. In particular, one of the cases, Hackbart v. Cincinnati Bengals, Inc., is an interesting (and now famous) one that may prove instructive. All quotes are from the review by the United States Court of Appeals, Tenth Circuit, of the ruling made by a trial court.

The case arose when Bengals player Charles Clark hit Broncos player Dale Hackbart after a play, causing neck and muscular injuries.

One section of the Court of Appeal's review addressed whether or not the National Football League's rules allowed for such behavior:

18 WHETHER INTENTIONAL INJURY IS ALLOWED BY EITHER WRITTEN RULE OR CUSTOM

19 Plaintiff, of course, maintains that tort law applicable to the injury in this case applies on the football field as well as in other places. On the other hand, plaintiff does not rely on the theory of negligence being applicable. This is in recognition of the fact that subjecting another to unreasonable risk of harm, the essence of negligence, is inherent in the game of football, for admittedly it is violent. Plaintiff maintains that in the area of contributory fault, a vacuum exists in relationship to intentional infliction of injury. Since negligence does not apply, contributory negligence is inapplicable. Intentional or reckless contributory fault could theoretically at least apply to infliction of injuries in reckless disregard of the rights of others. This has some similarity to contributory negligence and undoubtedly it would apply if the evidence would justify it. But it is highly questionable whether a professional football player consents or submits to injuries caused by conduct not within the rules, and there is no evidence which we have seen which shows this. However, the trial court did not consider this question and we are not deciding it.

20 Contrary to the position of the court then, there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.

21 Indeed, the evidence shows that there are rules of the game which prohibit the intentional striking of blows. Thus, Article 1, Item 1, Subsection C, provides that:

22 All players are prohibited from striking on the head, face or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.

23 Thus the very conduct which was present here is expressly prohibited by the rule which is quoted above.

Another issue was whether "reckless conduct" was committed by Clark, and whether or not he had violated related laws. I'll quote specific passages instead of the entire section:

59 IS THE STANDARD OF RECKLESS DISREGARD OF THE RIGHTS OF

60 OTHERS APPLICABLE TO THE PRESENT SITUATION?

61 The Restatement of Torts Second, § 500, distinguishes between reckless and negligent misconduct. Reckless misconduct differs from negligence, according to the authors, in that negligence consists of mere inadvertence, lack of skillfulness or failure to take precautions; reckless misconduct, on the other hand, involves a choice or adoption of a course of action either with knowledge of the danger or with knowledge of facts which would disclose this danger to a reasonable man.

. . .

63 Therefore, recklessness exists where a person knows that the act is harmful but fails to realize that it will produce the extreme harm which it did produce. It is in this respect that recklessness and intentional conduct differ in degree.

64 In the case at bar the defendant Clark admittedly acted impulsively and in the heat of anger, and even though it could be said from the admitted facts that he intended the act, it could also be said that he did not intend to inflict serious injury which resulted from the blow which he struck.

. . .

66 Assault and battery, having originated in a common law writ, is narrower than recklessness in its scope. In essence, two definitions enter into it. The assault is an attempt coupled with the present ability to commit a violent harm against another. Battery is the unprivileged or unlawful touching of another. Assault and battery then call for an intent, as does recklessness. But in recklessness the intent is to do the act, but without an intent to cause the particular harm. It is enough if the actor knows that there is a strong probability that harm will result. Thus, the definition fits perfectly the fact situation here. Surely, then, no reason exists to compel appellant to employ the assault and battery standard which does not comfortably apply fully in preference to the standard which meets this fact situation.

The phrasing in the question was most likely unintentionally limiting, but the line between assault, battery, and reckless behavior is an important one here. It depends no the degree of intent, and the intent (or lack thereof) to cause harm.

One of the last paragraphs in the ruling sums the case up:

90 In sum, having concluded that the trial court did not limit the case to a trial of the evidence bearing on defendant's liability but rather determined that as a matter of social policy the game was so violent and unlawful that valid lines could not be drawn, we take the view that this was not a proper issue for determination and that plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated.

In short, the trial court's ruling stemmed from the fact that violent actions by players are sometimes considered "social policy" (in the words of the Court of Appeals, which reversed the verdict) and are thus not prosecuted.

The original article, though, did make a note about different policies in (ice) hockey, which often has fights:

Over the past decade or so, the courts have begun to convict players more frequently for on-ice assault. And, where the courts initially differentiated between conduct that was incidental to the game and in the heat of the moment (Maki), with conduct occurring after the play was over (Gray), recent court decisions are now simply finding incidents that occur during the course of play to be excessively violent. Since the most common defense to excessive violence is consent, the court in Regina v. Cey, [Regina v Cey 48 C.C.C. (3d) 480 (Sask. CA. 1989)], developed a five part test to determine if valid consent exists in the context of an athletic event. They are: “(1) Nature of the game; (2) nature of the act; (3) the degree of force employed; (4) the degree of risk of injury; and (5) the state of mind of the accused.”

I'll do some research about Regina V. Cey to see if I can find out more information on the matter.

Answer 5

I'm asking whether or not it's technically legal to do these sorts of things?

TL;DR

No, it isn't

---

Assault and Battery

I will limit the discussion to NSW, Australia but most of it flows from common law principles.

The Judicaial Commission of NSW says:

An assault is any act — and not a mere omission to act — by which a person intentionally — or recklessly — causes another to apprehend immediate and unlawful violence: R v Burstow; R v Ireland [1998] 1 AC 147. Thus it is the fear which is the gist of assault.

Battery is the actual infliction of unlawful force on another. But the word “assault” has come to describe both offences: see DPP v JWH (unrep NSWSC, 17 Oct 1997).

Technically, the type of conduct you are describing is battery, not assault.

---

Defences

They go on to say:

Should any issue of “lawful excuse” arise, that will also have to be dealt with for example, by pointing out that the Crown must prove beyond reasonable doubt that the assault was not consented to, or that the accused was not acting in lawful self defence.

There are two points to note in this (see http://criminal.findlaw.com/criminal-charges/assault-and-battery-defenses.html):

1. You cannot consent to battery that will cause actual bodily harm - this is an indistinct line - tattoos and piercings are OK, having your arm broken is not,
2. The defence is limited to what was consented to.

In the context of a sporting contest it is the second point that is relevant - a court would generally find that you have consented to the normal rough and tumble of sport concerned. This would mean that an injury as the result of, say, a tackle would not be battery even if the tackle was not legal provided that the tackler was not reckless or intending to cause harm.

---

Why aren't they charged for assault and sentenced to jail time?

Discretion.

I refer you to this illuminating paper which states things from an Australian perspective (including how they differ from the US & UK) and particularly to this quote from the top of page 16 which pretty much says it all:

The primary importance of discretion in criminal proceedings is summed up in the words of Sir Hartley Shawcross QC as Attorney General in addressing the House of Commons on 29 January 1951:

“It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should…prosecute ‘whenever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest.’ That is still the dominant consideration.”

These words are quoted by all but two of the Australian Directors in their guidelines for the conduct of prosecutions. Our system allows for discretion in the selection of matters for prosecution and the manner in which they are prosecuted.