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 VOLUME 11 - CHAPTER 252
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252.6 Consent, Actual

    252.6.5 Consent: Assault Crimes    

    252.6.5.1 Assault: Consent To Bodily Injury -- Athletic Contest

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 11 - CHAPTER 252

RATIONALE: A person who participates in athletic contests should be considered to have consented to the foreseeable hazards of such participation.

POINTS AND AUTHORITIES: Consent is a defense to an assault during an athletic contest provided that the injury was a foreseeable hazard. (See State v. Shelley (WA 1997) 929 P2d 489, 490.) However, consent may be a defense to such a charge if the assault involved "ordinary physical contact or blows incident to sports such as football, boxing or wrestling." (People v. Samuels (CA 1967) 250 CA2d 501, 513 [58 CR 439]; see also People v. Lucky (CA 1988) 45 C3d 259, 291 [247 CR 1] [consent is no justification to voluntary mutual combat "outside the rules of sport...."]; People v. Alfaro (CA 1976) 61 CA3d 414, 429 [132 CR 356]; State v. Floyd (IA 1990) 466 NW2d 919, 923; Thompson v. Ruidoso-Sunland (NM 1987) 734 P2d 267, 271; People v. Freer (NY 1976) 381 NYS2d 976, 978; State v. Shelley (WA 1997) 929 P2d 489, 493 [in all sports players consent to many risks, hazards, and blows, but there is limit to magnitude and dangerousness of a blow to which another is deemed to consent; this limit, like foreseeability of the risks, is determined by presenting evidence to jury about nature of game, participants' expectations, location where game has been played, as well as rules of game].)

    Because aggravated assault statutes are "obviously designed to prohibit one human being from severely or mortally injuring another...consent [is] not a defense to [an] aggravated assault charge." (Samuels, 250 CA2d at 514.)

    Similarly, it is no defense to a criminal prosecution for assault and battery constituting breach of peace that defendant was engaged in mutual combat, and in such case both participants are guilty of offense and may be prosecuted criminally. (State v. Mace (AZ 1959) 340 P2d 994, 996; see also State v. Dunham (OH 1997) 693 NE2d 1175, 1176.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

Annotation, Consent As Defense To Charge Of Criminal Assault And Battery, 58 ALR3d 662.

Wharton’s Criminal Law § 46 [Defenses; Consent] p. 306 (West, 15th ed. 1993).

See also generally, FORECITE National™ 305.3.10 [Consent].

    When a charged offense is based on conduct which causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if the conduct and injury were reasonably foreseeable hazards of joint participation in lawful athletic contest or competitive sport or other activity not forbidden by law.

[Source: Adapted from State v. Shelley (WA 1997) 929 P2d 489, 490-91 [following approach of Model Penal Code].]