Contact sports and assault

Question

So I have a question regarding contact sports (football, boxing, martial arts, etc.) and why the contact is not considered assault. I've read the code and do not see any sort of exemptions mentioned regarding consent, involvement in a sport, etc.

Is it common law? Discretion? Perhaps it's handled in a different section of the law I didn't think to look? Something I am missing? Note I am not talking about brawls or getting into the fights on the field and such, just what would be normal in the context of a sport but would otherwise be considered assault outside the ring or off the field.

For reference I am in SC if that would make a difference to your answer, but more general answers would be welcome also, if nothing else they might get me pointed in a direction I hadn't thought to look.

Possible duplicate of Why aren't athletes charged with assault? — Nuclear Hoagie, Jan 11 '19 at 19:23
This question covers exactly the aspect that is ignored/bypassed at the start of the linked question.t is NOT a duplicate. — David Siegel, Jan 11 '19 at 19:44
Yes I came across that when looking on my own before asking, and as David pointed out though we're asking two different things. I am specifically asking about contact/hitting within the normal context of the sport. Whereas that one was not. — Wayward, Jan 11 '19 at 19:54
Agreed; the linked question appears to be specifically about violence and harm that occurs outside of the rules of gameplay. Not a duplicate. — Rebecca Nelson, Jan 11 '19 at 20:14
The most-extreme version of this might be duelling, as a starting point. — Roger, Feb 12 '19 at 16:23

score 1 · Answer 1 · edited Jun 17 '20 at 08:31

1

Definitions

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).

Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at 472 described an assault in the common law sense of the word as follows: “Such an assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault.”

Judicial Commission of NSW

Voluntary participation in a contact sport precludes such apprehension.

However, if the act of the perpetrator transcends the rules of the game to such an extent that such apprehension exists it can become assault. A tackle is legal in football, a punch is not.

edited Jun 17 '20 at 08:31

Community

1

answered Jan 11 '19 at 22:15

Dale M

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I can play a sport and fear a normally acceptable action from someone. Presumably this is a sufficiently small part of the sport, and I like the rest enough, so I'll still want to play. – David Thornley Jan 11 '19 at 22:45
"Voluntary participation in a contact sport precludes such apprehension." That is quite a claim. – Acccumulation Feb 11 '19 at 18:31
@Acccumulation after working for a Sheriff for several years, I can tell you it is a true claim. – Putvi Jun 11 '19 at 19:01
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@Putvis That is a non sequitur. The part of your sentence before the comma has nothing to do with the part after. – Acccumulation Jun 11 '19 at 19:04
You guys say this, but it is the police who will decide if you are arrested. – Putvi Jun 11 '19 at 19:06
@Acccumulation not that I mean that to demean you, but how is it that the police's feelings on the matter would not come into play? – Putvi Jun 11 '19 at 19:10
@Putvi The police's feeling certainly would come into play as to whether you are arrested, but they don't have any bearing on the factual question of whether apprehension is precluded. And unless your county includes unincorporated areas, municipal police are more likely to be involved than the sheriff's department. – Acccumulation Jun 11 '19 at 19:15
Police and deputies go to the same training. Apprehension being precluded or not is largely a function of your local officers and prosecutors. – Putvi Jun 11 '19 at 19:18
Not that @Putvi's answer below is 100% on point, but dismissing at least the prosecutorial discretion point that he brings up is wrong. Indeed, courts have been reluctant to criminalize on-field behavior (even such behavior that goes beyond the rules of the sport) mostly because of the participants' consent but also because they allow the sports leagues themselves to establish and enforce the rules and penalties the players are subject to. – A.fm. Jun 13 '19 at 05:10
@A.fm. Thank you. – Putvi Jun 13 '19 at 17:09

David Siegel · Answer 2 · 2019-01-12T17:13:34.570

This is the kind of issue where a Legal Realist would say that the law isn't what it claims to be. In the US, the UK, and other common law countries, the common law of assault says that there can be no consent to assault. This legal concept has been used to treat as criminal sexual activity that is violent but has been consented to. But in the case of contact sports, we get a little mystical, if not hypocritical.

The source quoted in @Dale M's answer (R v Burstow; R v Ireland [1998] 1 AC 147) says that an assault

causes another to apprehend immediate and unlawful violence

But in the case of a rough contact sport such as football or boxing, a player may well apprehend violent contact, and even fear serious injury. A person about to be tackled in US-rules football, or punched in Boxing, or struck in a mixed martial arts bout, may quite reasonably fear quite serious injury -- such injuries do happen. The obvious difference is that such a person apprehends "violence" but not "unlawful violence". But what makes the violence lawful? Apparently the fact that it is expected within the rules of the game. In effect, we treat the player as having consented in advance to that kind of violence which is within the rules, although the laws don't put it that way. Yet if two or more people enter into an informal "fair fight" or a brawl, where each knows that violence may be expected, and perhaps is quite willing to receive as well as give attacks, the law does not exempt them, but treats them as guilty of assault and/or battery.

It seems that where the game has a somewhat formal existence, with agreed (and published) rules, the legal process (and those who administer it) treats the rules as if they were incorporated into the law, and legitimize the violence, as long as the rules are complied with.

This is a case where he true rule can perhaps be better determined from how the courts and the legal system as a whole acts, rather than from what the statute books and court opinions say. That is exactly the theory of "legal realism", which asserts that the true law is to be determined from what courts do, not what they say.

I am not sure if any of this applies to civil-law jurisdictions, or if they have explicit statutes for this case.

It seems like the qualifier "unlawful" just makes the definition circular. One would have to cite someone other statute making the violence unlawful to prosecute the conduct. — Acccumulation, Feb 11 '19 at 18:32
@Acccumulation it's really about whether intent is present. Under just the definition of battery, tons of things that would be crazy to put people in jail for would be crimes. — Putvi, Jun 11 '19 at 19:34
This is inaccurate. To the contrary, consent is one of the common defenses in criminal law and in certain circumstances, which include participation in sports, consent applies even to assault and battery (https://www.justia.com/criminal/defenses/consent/). Courts scrutinize it as a defense and can find that more serious harmful acts violate public policy and should be punished notwithstanding consent (https://criminal.findlaw.com/criminal-charges/assault-and-battery-defenses.html), but it is nonetheless not unavailable as a defense. — A.fm., Jun 13 '19 at 05:21
In short, due to presumed consent by participating athletes and the notion that the leagues are responsible for regulating themselves, all but the most outrageous conduct is not prosecuted (https://blogs.findlaw.com/tarnished_twenty/2015/04/when-do-sports-become-criminal.html). — A.fm., Jun 13 '19 at 05:34

score -3 · Answer 3 · answered Jun 11 '19 at 19:25

Generally, putting someone in jail and restraining them of their liberty is considered very serious and should only be done when needed, in the eyes of most law enforcement and prosecutors.

There will probably always be situations where you could read things into the law, but it is important to look at the intent. You could read your state's battery laws as outlawing football or you could say the people who wrote those laws, probably meant that you should arrest people if they intentionally batter someone to cause fear or harm.

Also, sometimes accidents occur. If you considered anything that could be battery a crime then if you tripped and hit someone that could be an illegal battery.

For those two reasons, you have to come up with a system of enforcing that law that is as equal and fair as can be possible, while still attaining your goals.

Most police and prosecutors will look for intent since that would exclude sports or accidents that could injure someone. Obviously those two things are not going against the spirit of what battery laws were meant to engender.

Contact sports and assault

3 Answers3