Consent as a Defense to Assaults in Sporting Events

By Brett A. Purtzer; April 2000

Recently, there have been published incidents of youths being charged with criminal offenses arising from assaultive conduct occurring during sporting events. The difficulty with this type of a case often surrounds a determination of whether the conduct has been consented to because it occurred during an athletic contest. Under such circumstances the seminal case that one should consult is State v. Shelley, 85 Wn.App. 24, 929 P.2d 489 (1997). There, a University of Washington football player, Jason Shelley, punched another person and broke his jaw during a pick-up basketball game.  After trial, Shelley was convicted of second degree assault for intentionally punching the other player. Shelley’s defense was that the victim consented to the possibility of injury when he decided to play in the pick-up game. Although the Court of Appeals agreed that consent may be a defense to assault in athletic competitions, the evidence did not establish a factual basis for that defense.

Importantly, Shelley should be consulted whenever you have a situation in which an alleged assault arises from an athletic contest or any type of activity where contact might occur.

Although a defense of consent exists, it is somewhat limited.  To determine whether that defense may apply, the following factors must be reviewed: (1) whether the conduct of the defendant constituted foreseeable behavior in the play of the game, and (2) whether the injury occurred as a by-product of the game itself.

Although the claimed assault may violate the set “rules” of the game, the consent defense can apply even where the conduct clearly violates the rules, but is a foreseeable behavior of the game. Hockey probably provides the best example of conduct, i.e., fighting, that is clearly assaultive but appears to be a foreseeable and condoned aspect of the sport. Under such circumstances, this limited defense may apply. The gray areas that arise however, are circumstances when, after a whistle blows and the play or event is over, whether any subsequent conduct which allegedly is assaultive can be defended through use of the defense of consent. To determine whether you have a justifiable shot at this defense, it is advisable to seek the expertise of officials, participants, and coaches in the respective sport. The test set forth within Shelley is factually driven, and the input from these individuals will help determine whether consent will be a valid defense.

Importantly, the outside parameters of this defense were addressed in State v. Hiott, 97 Wn.App. 825, 987 P.2d 135 (1999). There, the Court of Appeals, reviewed the Shelley factors in affirming a third degree assault conviction surrounding an assault that occurred during a game in which Hiott and his friend where shooting at each other with B-B guns. There, the issue was whether the victim’s consent to this “game” was a defense to an assault charge. Importantly, the court noted that “consent is a defense only if the game is a lawful athletic contest, competitive sport, or other concerted activity not forbidden by law.” Clearly, shooting at each other with B-B guns was not a sport or concerted activity that was allowed. The same analysis can be used whenever you have an issue where your client urges that the “victim” consented to the alleged assaultive contact.

With this framework in mind, when you come across a case where your client, either a juvenile or adult, is charged with an offense arising from a sporting event or other type of contact activity, you might want to seek the advice of persons familiar with the sport or activity.  Attempt to learn whether the alleged assault is something that is within the parameters of the contest. If you run into a gray area that appears to be outside the framework of the sport or activity, the better approach may be to try to resolve the case short of trial.

This becomes particularly important when dealing with juveniles, which is where these cases seem to arise more frequently, because of the long-lasting effect a felony conviction would have on a youngster’s future. Meeting with the prosecutor and presenting your client’s positive attributes may assist when attempting to negotiate the charge. In the juvenile setting some felonies can be resolved by a deferred adjudication, which would minimize the effect the felony would have as successful compliance would result in the charge being dismissed. 

Accordingly, when faced with an athletic assault case, consult Shelley and Hiott for guidance in order to resolve them favorably for your client.