Is Consent a Defense to Assault?
by: Rjohnson • January 24, 2011 • no comments
Suppose that, at a family picnic, there's an impromptu tackle football game. Participants range in age from 12 to 60. Forty-year-old John tackles seventeen-year-old Mike. Although John's behavior is perfectly reasonable and appropriate for a friendly game, he breaks Mike's wrist.
Is that a crime? I can't think of a reason why it's not. I think John is guilty of intentionally causing physical injury, which is assault in the fourth degree. If Mike's injury were a "serious physical injury," then John is guilty of assault in the second degree, carrying a mandatory 70-month prison term.
John did not intend to injure Mike, just to tackle him. But that doesn't help. Intentional assaultive conduct is sufficient for a conviction even without intent to injure. State v. Barnes 329 Or 327, 986 P2d 1160 (1999). And this was no accident; John intended to tackle Mike. (If I managed to run down and tackle a seventeen-year-old nephew at a family football game, I'd be thrilled.) Maybe 'assaultive' conduct under Barnes means criminal or otherwise wrongful force, but Barnes doesn't say so. This may be a reason that the holding in Barnes is wrong. It's at odds with the language in the statute; the phrase "intentionally . . . causing physical injury" suggests that it is the injury specifically that must be intended, not merely assaultive conduct. And, in a case like the hypothetical, it seems unlikely that the legislature intended to impose criminal penalties at all. Prosecutorial discretion might save John, but it might not; elected prosecutors are unreliable as bastions of mercy, or even of reasonableness. And, in light of the typical confusion and inconsistency between multiple witness statements, there might be evidence, true or not, of misconduct or a bad motive by John. That evidence could lead an overzealous prosecutor to bring charges even if it wasn't related to the football game or didn't warrant prosecution.
The tackle in a football game looks non-assaultive because the participants in the game have consented to the rigors of the game. But there is no basis in the Oregon Revised Statutes to raise consent as a defense to assault, either of an adult, or of the juvenile Mike in the hypothetical. I don't know any reason why a professional football player, or boxer, or even a surgeon, is not guilty of a crime. It's hard to imagine them being charged, but if they were there is no obvious defense under Oregon statutory law.
If I were a surgeon, the knowledge that every surgery was also an assault would make me nervous, even with the possibility of a choice-of-evils defense. There are a few hoary old cases discussing the issue, mostly in the context of civil suits, but none are dispositive or even particularly helpful. There are also a few cases discussing mutual combat as a defense, but those don't really assist with this issue. If a criminal defendant were engaged in mutual combat with the victim, the statutory defense of self-defense is unavailable, ORS 161.215, but it's obvious that John was not defending himself against Mike. So even if there were a consent defense of some sort, it wouldn't be a variety of self-defense, but some other defense completely.
And John is in even more serious jeopardy than the boxer or the surgeon, because Mike, as a juvenile, might not be able to consent even if he wanted to. Juveniles are expressly unable to consent to sexual conduct, but maybe the statutory provision precluding consent to sexual conduct also means that children can consent to other things. Or I suppose it's possible that a juvenile's parent or guardian can consent to the juvenile playing football, but not, I suspect, to sexual conduct.
This doesn't come up often, maybe because prosecutors are more reasonable than I give them credit for, or maybe because they haven't thought of it. I'm not sure how I'd raise it if it came up. A special jury instruction on consent or on the victim's right to participate in violent football games? A liberty interest in consensual football games? Mitigation at sentencing? This is really an issue for the legislature, but I doubt it's very high on their to-do list. Keep it in mind if you have a plausible consent issue in an assault case.
Rankin Johnson IV is a Portland criminal defense attorney, handling primarily appeals, post-conviction relief, and federal habeas corpus. www.briefwright.com
