Academic journal article Journal of Criminal Law and Criminology

The Manly Sports: The Problematic Use of Criminal Law to Regulate Sports Violence

Academic journal article Journal of Criminal Law and Criminology

The Manly Sports: The Problematic Use of Criminal Law to Regulate Sports Violence

Article excerpt


When not on the playing field, an athlete stands in the same relation to the criminal law as does any other citizen. (1) The particular requirements of the athlete's sport, where that sport includes acts of a violent nature, do not supply the athlete a special defense of "diminished capacity." (2) Thus, an athlete has never successfully claimed that his particular conditioned-behavior characteristics of learned violence allow him, like a "battered spouse," wider latitude in justifying criminal conduct) The fact that no athlete has successfully articulated such a defense to off-field behavior is surprising, given the volume of sociological literature that supports the claim that an athlete's conditioned behavior tends to produce violent conduct off of the playing field. (4)

Acts of violence that take place on the playing field are treated in an entirely different manner. (5) Assaults and batteries that would render an athlete subject to criminal prosecution were they to occur away from the playing field are considered "part of the game" when they happen during the course of a violent sport. (6) Typically, where such assaulting acts exceed certain perceived standards of appropriate play on the field, the worst result an athlete may expect is a league sanction in the form of a fine or brief suspension] Only in unusual, but not entirely rare, cases does the act of violence on the playing field subject the participant to a risk of criminal prosecution. These cases typically involve a rather egregious act of violent assault that gains public notoriety and that so far transgresses the stated and unstated norms of the game to render the public prosecution relatively unproblematic. (8)

The reason athletic participants may visit assaults and batteries upon each other revolves around the idea of "consent" that permeates the relevant decisions. (9) In the context of sports, consent is a term that eludes easy definition. It refers to the issue of whether or not consent to a particular sport, presumably given voluntarily, is nonetheless valid. (10) Stated differently, even willing, factually consenting participants may not give valid consent to certain sporting activities, such as a sport that occasions excessive risk to life and limb. (11) In this sense, the law provides limitations on consent. This notion of consent can be captured by the term legality. (12) Consent can also, more commonly, refer to the automatic, "presumed consent" that a participant impliedly gives upon agreeing to play a particular sport. In these presumed-consent cases, consent is found even if, in fact, it is not given in an informed, volitional, affirmative manner. (13) Finally, the term consent is used to refer to the factual provision of affirmative consent in the particular case. A participant in a sports contest, even an illegal one, may nonetheless defend his assaulting conduct on the grounds that the plaintiff consented to the assault through a demonstration of "volitional consent." (14)

Despite the obstacles that consent poses to a criminal prosecution, U.S. history is dotted with criminal convictions for on-field behavior. (15) Certainly, prosecutorial discretion has countenanced restraint in bringing indictments for conduct on the playing field. (16) Indeed, there are several strong policy-based arguments against extending criminal liability to athletic endeavors. (17) Nonetheless, egregious assaults have, with notable frequency, generated criminal prosecutions. What this approach has led to, at least in an abstract sense, is the result we have today: that criminal prosecutors and criminal juries, and not the governing bodies of a sport or league, increasingly define the outer contours of permissible sporting activity.


Regardless of the willingness of the participants, the laws of most states have always placed limits on the legality of certain sporting ventures. …

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