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Did you ‘consent’ to a punch in the face?

August 13, 2018

My last blog on sports field assault, foreshadowed a conversation about the ‘consent defense’. Most people I’ve spoken to have either not heard of it or are only vaguely aware of what it means. This post delves in to ways in which the law views 'consent defense' and provides the reader with a taste of its mixed interpretations. Not being a lawyer, all errors of law in this post are my own.

 

This post aims to give coaches an insight to the social norms that their athletes should reflect and ways to position those norms into on and off-field situations before they happen.

 

Put simply and in broad principle, the law uses the principle of lawful consent as the means to legalise an action that would otherwise be deemed unlawful i.e. on- field violence. Until now, sporting consent served to protect the participant from the court's judgement. Thus, in a sport where violence or targeted collision is a known and accepted feature, the relationship of the players to each other may be said to be founded on an assumption of consent.

 

This is murky territory: what have the courts said? Here are three examples. An important 1882 case (R v Coney) held that, amongst other things, "There is abundant authority for saying that no consent can render that innocent which is in fact dangerous."

 

One hundred years later in a 1980 Court of Appeal hearing, “Blows struck in anger which are intended to or likely to cause bodily injury are unlawful whether or not the victim consents because the public interest is that bodily injury should not be inflicted unless justified by some beneficial purpose recognized by the law, for example, sport…"

 

Clearly the question that the courts must eventually address is whether or not any benefit is gained through on-field fighting. The matter slowly came to a head in R. v. Jobidon (1991) where Justice Gonthier stated:

"If aggressive individuals are permitted to get into consensual fist fights and they take advantage of such licence, then it may come to pass that they eventually lose all understanding that such activity is the subject of a powerful social taboo. It is unseemly from a moral point of view that the law would countenance such a conduct."

 

All that seems to be clear and consistent. The consent defense, however, has led to the development of several interpretations. In one view, the player is said to be willing to submit to violent contact within the rules e.g. a rugby tackle. However, some authorities have said that going outside the rules in some cases, while outside the game rules and subject to a penalty, does not breach consent. In other words, it’s part of the game. I find that a weak and self-serving position.

 

An alternative view is that the player may have a reasonable expectation of violence by consenting to play. That approach does not sit well when compared to say a mugging in a park at night in a dangerous area. You can’t consent to the mugging even though there may be a chance of it happening.

 

In another view, some hold that consent does not apply if the opponent goes out of his (usually 'his') way to commit the assault (as in Hackbart cited in my last post). But this is tricky to apply; as demonstrated in the recent basketball bench-clearing fight between the Australian and Philippines men's teams.

 

The question we should all ask is whether an action deemed a crime off the field can be committed with impunity on it? Sport rules and ‘laws’ do not trump the law of the land. It is clear in the Gaff case (the subject of last week’s post), that Gaff’s assault was not incidental to the game and he intended to cause harm: which he did successfully. At that point, it is in the public interest for the courts to have a say on behalf of the public, for the injured party cannot possibly have been said to have consented to a broken jaw, damaged teeth and weeks eating and drinking through a straw.

 

Contact sports, or more precisely, collision sports cannot be fully exempted from the rules of consent. While on-the-ball incidents seem to cause the greatest problem for the courts, the Gaff incident was off-the-ball and a raft of case law deems such incidents to be unambiguously criminal assault.

 

[Late breaking news: as I was about to post, the news reported that 21-year old French rugby centre, Louis Fajfrowski, died last Friday after a being injured in a tackle]

 

 (photo source: ABC AM)

 

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