Consent in Fighting
At its core, consent is the acceptance of what is offered, the approval of what is done, the giving up of a right. Consent must be voluntary and given knowingly in order to be valid. In other words, a person must be able to give consent in order for consent to be valid. State law varies on the definition of consent but generally, consent is a condition which negates any liability for a tortuous act. In essence, consent provides permission for another to carry out an act.
With regard to bodily harm, consent is of paramount importance. A finding of consent generally precludes imposing liability or even a criminal conviction. The law presumes that there is no liability where the act complained of involves an exercise of consent in which the injured party either: (a) exhibits an affirmative exercise of free will, manifesting a desire to engage in the particular conduct in question; or (b) fails to exercise ordinary care to avoid danger to himself or herself.
Essentially, consent serves as a defense to liability. A defendant who would otherwise be liable for the intentional infliction of harm upon another will not be so liable if it appears that the other consented to the harm intentionally or negligently inflicted. In the context of fights and assaults, consent may be express or implied. Express consent is where a person enters into an altercation or engages in contact sports with an expressed understanding that harm may befall him or her in the course of engaging in the activity. Implied consent is where consent is inferred based on the circumstances of the altercation.
In order for the doctrine of consent to apply, the consent must be effective in its own setting. In other words, consent is always relative to the persons, the subject matter, and the setting to which it relates . For example, in a boxing match, it may be appropriate for one or both boxers to consent in advance to the referee’s right to impose penalties for illegal blows, in a football game, players implicitly consent to the risk of being tackled, and in a nether violent but still assaultive activity, a scientific demonstration may constitute implied consent to physical interference with property.
Mutual consent implies some voluntary and unimpeded acquiescence. It arises from a mutual agreement between the injured party and the other engaging in the activity. For mutual consent to occur, the consent of both parties must be given voluntarily without intimidation or coercion. Essentially, the law infers consent as a result of acquiescence to the conduct of another. Consent may be inferred through continued association or participation in a course of conduct.
Consent in the context of a fight encompasses implied, express, and mutual consent. An individual does not explicitly consent to the violent nature of a fight, however there is always an awareness of the likelihood that his or her body may be physically attacked. In the context of a fight (or boxing), it is consent to violent contact, not consent to injury. To consent to the violent nature of a given action is to consent to engage in the type of behavior that produces what is commonly known as bodily injury. Consent to the intentional or reckless infliction of bodily injury upon another means freely engaging in an activity that necessarily transmits a risk of harm.
The concept of consent in a fight does not deem fights consensual or consensually engaging in the sense that the fight was an activity both or all parties derived some benefit or enjoyment out of the activity. Rather, consent in a fight is primarily used as a defense to criminal liability such as civil assault or battery. Consent is not a defense that absolves the perpetrator from civil liability for the injury caused by the commission of a criminal charge such as civil assault.
Legal Consequences of Fights with Consent
While consensual fighting, or fighting with a weapon, may be legal in certain circumstances, there are potential criminal and civil legal implications for an individual who organizes or participates in such an event. Fighting falls within the definition of a simple assault, the definition of which includes:[1]
(i) the attempt to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(iii) engages in physical conduct, including the use of a deadly weapon, in a manner that creates a substantial risk of bodily injury to another; and
(iv) subjects another to physical contact for the purpose of causing bodily injury to such other; . . .
It is important to note that the Criminal Code does not limit what it means to "consent" to a fight or consent to physical violence. Specifically, the use of deadly weapons carries additional penalties, if committed against:[2]
(i) A person 12 years of age or younger;
(ii) A person 60 years of age or older;
(iii) A disabled person 18 years of age or older;
(iv) A pregnant person; or
(v) A police officer assaulted while in the performance of law enforcement duties.
Furthermore, the Criminal Code also treats different types of weapons differently, which can lead to additional penalties. For example, under Criminal Code § 61-2-9 (2018), a person "who carries a gun or anything else that is not a deadly weapon into the dugout, bench area and/or field area of a school athletic event" commits a petty misdemeanor punishable by at least 6 months in jail. If the weapon is real (or a deadly weapon), the penalty increases to a misdemeanor punishable by at least 6 months in jail.[3] Even if the offender is not caught, the consequences are severe. It is important to keep in mind that criminal charges can result in fines and imprisonment, but civil liability can come in the form of a lawsuit for civil assault and battery. This could result in a civil suit for damages if the victim(s) sue for medical expenses, mental health expenses, pain and suffering, scars or disfigurement, permanent impairment or income loss, etc.
As indicated above, consent is not a defense in the vast majority of cases. Therefore, the best way to avoid criminal or civil charges is to avoid consensual fighting and, instead, participate in organized sport-based events (if possible).
There are a few specific laws to keep in mind when the use of fists are involved in consensual fighting. Under Criminal Code § 30-3-4, the owner or manager of property must post notice to owners/operators of licensed motor vehicles to not allow fighting on the premises. Further, that person must not allow fighting on the premises. Violation of this subsection is a petty misdemeanor. A second offense is a Class B misdemeanor; a third offense is a Class A misdemeanor; and a fourth offense is a fourth degree felony. However, it is important to note that this law does not apply if the "owner or manager of the property was not present on the property or did not have actual knowledge of the fighting".[4]
Another law that applies to consensual fighting is Criminal Code § 30-3-5 (2017). This law addresses fights between two consenting adults. It states that a person commits a Class C misdemeanor if that person "[e]ngages in a dust-up with two or more willing combatants". The term "dust-up" means an "unlawful fight between two or more willing combatants that is not conducive to the public peace and safety or the safety of the combatants". Dust-ups are also commonly known as "prize fights", and do not include "any traditional contests… [or] combative sports". Again, it is important to note that this law does not apply if the "owner or manager of property was not present on the property or did not have actual knowledge of the fighting".[[5]
In sum, there are both criminal and civil penalties for those who engage in permissible consensual fighting or otherwise organize such events.
Countries and States with Fights Consent Laws
There are three places in the United States where consensual fighting is expressly prohibited. The first of these is Massachusetts, which, as I noted last time, is cited by Black’s Law Dictionary as a state where fighting is "prohibited." That comes from the Massachusetts General Laws, Chapter 265, Section 37. In addition to stating that a person who "unlawfully begins or participates in a fight with serious provocation," this law adds: "A person who participates as a willing and knowing adversary in an event of any such fight may be punished as a principal."
New York has a similar law that makes it a crime to participate in "a sporting event or game because by the rules a fight or struggle is carried on between two or more persons, such event or game not being an event or game involving animals." This law covers all situations where two or more people agree to wrestle or box or otherwise engage in physical competition.
Another state which will put the fighters in jail for their brawl is New Jersey. There is literally no exception for sanctioned and controlled amateur boxing. According to the New Jersey Statutes, Title 2C: 39-3, the state’s assault and battery statute defines a "simple assault" as occurring when a person "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another" and further states that "[a] person is guilty of aggravated assault if he a. Does this "knowingly" or "recklessly" in the course of an agreed-to fight. I’m not sure how this applies to the Jersey Shore.
Punching and Biting as Self-Defense and Consent
It is important to recognize and understand the differences between self-defense and consensual fighting. The law embraces a very broad view of what constitutes self-defense, but far less recognition is given to fighting consensually. The legal doctrine of "mutual combat" seems to be, at least by some, more closely approximated to gladiatorial fighting than consensual street fighting. It has been said that: "As long as an individual is not engaging in deceit, fraud, or coercion, then they can give their consent to whatever behavior they are experiencing because it is theirs to give." Roth, When the Crowd Turns on You: The Dupree Street Incident, 20 Hastings Comm. & Ent. L.J. 1 (1997). That is to say, in fighting consensually you are going to be violating the statutes against affray, assault, battery, and fighting in a public place, even though you may be protected by the doctrine of "mutual combat" if the circumstances meet the requirements. In contrast, with self-defense, you are not violating the criminal code, because your actions in defense of your person are justified. Those actions do not mean that normal civil liability falls upon you if you injure or kill someone in "self-defense", but otherwise would. The distinction is a matter of which doctrine applies.
Role of Intention and Harm in Lawfulness of Fighting
Fighting in many forms is an organic part of human interaction, and legal scholars and courts have long wrestled with its ramifications. Though most fights occur on the street, in schools, or in bars and taverns, some few wind up in sad, sordid courtrooms where the question of culpability must be determined. In California law, as in many states, the initial inquiry concerns the intent of the participants. Were they participating in a consensual fight? Are they reporting participants in a criminal assault and battery? Intent may be clarified by the circumstances leading to the fight, including the degree to which attempts were made to defuse the situation before it escalated. The infraction for which the state may prosecute or fine a consensual fighter is disturbing the peace, California Penal Code section 415. Prior to 2013, Penal Code section 415 might also be invoked where no harm had actually been caused, but one person or another or both in a group had used offensive language that threatened violence.
As has been noted, fighting without malice to cause harm or emotional distress to the other participant may be treated as an infraction in California. If a disruption of public peace leaves some party or multiple parties injured, medical witnesses will be called as evidence to determine if physical harm occurred, and to suggest the extent to which such harm was caused by the assault. In California, only serious and practical harm will hold a defendant responsible as a criminal assailant . If one person, the assailant, selects the weak point of the other, and inflicts intentional physical harm with malice, then the assault and battery committed can be prosecuted under Penal Code section 220, which classifies the crime as a felony. However, what if two or more participants agreed to fight, then each mitigated the potential for damage? What if both came out basically unscathed from physical violence, even if the mental and emotional results were grievous?
Let us look at how less severe injuries that undermine the conclusion of offensiveness might change the legal standing of those participants in a consensual fight. When the injury results from a voluntary altercation not required to protect a legitimate interest, the court will often find defenses that exonerate the deed as a consensual fight. However, if the injuries are greater than normal and there was no prior quarrel that logically escalated to a fight, then the injury might be deemed significant enough to support the notion of malevolent intent. Mutual participants in a street fight should never assume that until the physical harm and psychological effects are assessed that the event was necessarily a consensual fight. Likewise, even if loss was sustained, if the actions were well planned and actions well considered by all parties, the "rule of hand" breaks down, and individual injury becomes the focus of a trial jury on which a verdict regarding culpability will hinge. Determination of the outcome hinges on the exact nature and extent of the physical harm which occurred as a result of the fight.
Social and Moral Considerations for Consensual Fights
Lawmakers and law enforcement must grapple with the preceding legal principles when crafting or enforcing rules governing consensual fighting. Lurking in the background of any proposed legislation, interpretation, or application of law regarding voluntary physical altercations is a debate as to whether such actions are solely the product of free will or instead stem from a more deep-rooted societal ill. Stated differently, is consensual fighting a valid exercise of individual autonomy or an expression of a more sinister mental illness?
A moral debate follows these intellectual inquiries: Do such acts of violence, while consensual, undermine the values of civil society? Of course, such considerations often fall to legislators and judges only if and when a dispute involving a consensual fight makes it to the halls of government. Public perception and societal norms, however, often shape the way legislators and enforcers approach the problem.
In other words, any law regarding consensual fighting behavior will likely be influenced—at least in part—by the prevailing social or moral attitudes toward consensual fights. For example, if the general public perceives such actions as a devastating disease afflicting our communities, then efforts to prosecute or enact legislation against such acts are more likely to be embraced—as were the 1800s-era DUI and domestic violence laws). On the other hand, if the general public perceives such behavior as a grotesque form of entertainment (but not a societal ill), then such acts will be met with both public and legislative resistance.
Alternatives to Fighting Lawfully
While the law surrounding consensual fighting can be murky, and the results can be disastrous if you end up on the wrong side of a criminal or civil case, there are a number of legal and safe alternatives to fighting that many people choose each and every day to help them deal with a problem person. These methods include everything from active listening and conflict resolution programs to mediation and standing up for themselves.
Mediation has been around for a long time and many people use it as a vital way to solve problems in their life. While A mediation program may seem like another form of fight club, that’s not the case. A mediation program is a place where problem people can go to resolve their issues without the need to physically harm one another . Mediators are in place in order to help you stay calm, understand your emotions and what is going on with the other person so that you can collectively come up with a solution to the issue that doesn’t involve either of you getting hurt.
Conflict resolution programs can be beneficial for those who are having problems both at work and at home. These programs helps you develop the communication skills that you need to help you solve your problem without resorting to violence. For some people, this can be the first time they’ve ever learned how to respond to a person when they are being aggressive or argumentative without flying off the handle and losing control.
And of course, there are plenty of regulated combat sports that can help you find an outlet for your aggressive and combative tendencies. From boxing to tau kwo do, there are a wide variety of programs out there that can help you learn how to fight, but in a controlled and safe manner.