State v. Shelley
85 Wash.App. 24, 929 P.2d 489, 1997 WL 9107 (1997)
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Rule of Law:
Consent may be a defense to a criminal assault charge occurring in an athletic contest, but it is not limited to conduct strictly within the rules of the game; rather, it extends to conduct and harm that are the reasonably foreseeable hazards of joint participation.
Facts:
- On March 31, 1993, Jason Shelley and Mario Gonzalez played 'pickup' basketball on opposing teams at the University of Washington Intramural Activities Building.
- During the game, Gonzalez had a reputation for playing overly aggressive defense and fouled Shelley several times.
- Toward the end of the evening, Gonzalez scratched Shelley’s face, drawing blood, while attempting to hit the ball away from him.
- After getting scratched, Shelley briefly left the game and then returned to play.
- As Shelley rejoined the game and ran down the court, he saw Gonzalez make a move towards him with his hand up, which Shelley interpreted as an attempt to prevent him from getting the ball or another attempt to harm him.
- Reacting in anger and fear of being hurt again, Shelley swung his right hand around and intentionally hit Gonzalez with his fist on the right side of his face.
- Gonzalez required emergency surgery to repair his jaw, which was broken in three places, and it was wired shut for six weeks.
Procedural Posture:
- Jason Shelley was convicted of assault in the second degree by a jury in the trial court.
- Shelley appealed his conviction to the Court of Appeals of Washington, arguing that he was entitled to a jury instruction on the defense of consent, which the trial court had rejected.
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Issue:
Does consent serve as a defense to a criminal assault charge in an athletic contest, and if so, is the scope of that consent limited strictly to conduct within the official rules of the game?
Opinions:
Majority - Grosse, J.
Yes, consent is a defense to an assault occurring during an athletic contest, and its scope is not limited to conduct within the rules of the game but encompasses conduct and harm that are reasonably foreseeable hazards of joint participation. The court recognized that a touching is unlawful in an assault only if the person touched did not consent. It rejected the State’s argument to limit the consent defense to sexual assault cases, reasoning that in sporting events, participants logically consent to potentially offensive contact, rendering such contact non-unlawful. The court adopted the Model Penal Code’s approach, which states that consent is a defense if 'the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport.' This standard explicitly rejects the trial court’s and State's position that consent is limited to acts within the formal rules of the game, acknowledging that certain excesses and inconveniences beyond formal rules are to be expected. The proper inquiry is whether the defendant’s conduct constituted foreseeable behavior in the play of the game and whether the injury occurred as a byproduct of the game itself. However, applying this standard to the facts, the court concluded that Shelley’s actions – intentionally punching Gonzalez with sufficient force to break his jaw in three places – exceeded the limits of what is reasonably foreseeable and consented to in basketball. Such a magnitude and dangerousness of a blow is not permissible under the defense of consent, even in rougher sports like rugby or hockey. The court affirmed the conviction, stating that Shelley had failed to establish a factual basis for the consent defense and his conduct was not a reasonably foreseeable hazard.
Analysis:
This case is significant for clarifying the scope of the consent defense in criminal assault cases arising from athletic contests. By moving beyond a strict 'rules of the game' standard to a 'reasonably foreseeable hazards' test, the court acknowledges the inherent physical nature of sports while still holding participants accountable for intentional and excessive violence. This decision provides a framework for courts to balance the public's interest in fostering sports with the need to prevent criminal behavior, ensuring that players understand the limits of acceptable contact. Future cases will likely rely on this foreseeability standard, requiring careful consideration of the specific sport's nature, participant expectations, and the magnitude of the harm inflicted.
