But I am the cops and this is a discussion some fellow officers were having about a battery arrest for that happened at another department.
A guy kept following another guy around a bar pointing at his own nose saying “cmon, hit me. Hit me right in the beak. I’m begging you. Please hit me”. So the guy hit him, knocked him out. Security cameras showed this is exactly what happened. Puncher kept trying to walk away.
Punchers attorney is arguing he was given consent.
Mostly agreed, but it will depend somewhat on the individuals involved in prosecuting and the outcome of the fight.
Realistically the cops, DA, and jury are all going to take some form of the role of omniscient observers, and it’s going to depend on how they feel about things and (very likely) how bad the outcome of the fight is. Someone ends up in a wheelchair for life and it’s going to be pretty tough for all those people to be like “well, they probably all agreed to it, so what are you gonna do?”
Yeah, I found one cite that I couldn’t really verify that said that TX and WA explicitly allow “consensual combat”, OR explicitly forbids it, and in the other 47 states it’s something of a grey area.
Ha ha. Sounds like consent to me, but I can see how reasonable people would differ.
ETA: Ok, on reflection, this sounds like it’s likely some sort of “disturbing the peace”, since asking someone to punch you is effectively challenging them to a fight.
So…let’s take it to an extreme to illustrate the issue:
Imagine if the person was asking to be shot.
The person being pestered finally turned around and shot the guy.
Would you have a problem with that arrest?
I don’t think it’s useful to take it to the extreme, because the extremes have obvious (and different) interpretations. Someone asking to be shot who gets shot should still be assault.
What if someone says “pinch me I must be dreaming” and you cheekily take their words at face value and pinch them? Battery? No, of course not, it’s a big waste of time for such a thing to be criminal.
So the question is really where do you draw the line, and the line is going to be somewhere between extremes. Is punching someone more like shooting them or more like pinching them?
That’s lethal force, a reasonable person would believe that such action would cause death. And one cannot consent to being killed. So your example doesn’t fit.
And I didn’t say I had a problem or not with the arrest. We’re just contemplating whether the puncher has a valid defense against battery.
I believe he’s also charged with Disorderly Conduct.
If I were a juror, I would like to hit him with disorderly conduct but acquit him of battery.
Being punched can definitely kill you or cause lifelong harm.
Imagine Mike Tyson getting a free shot at you with his fist.
Of course but so can stubbing your toe. Please stop complicating this.
Well, you need to define your OP better then.
Are we limited to spanking our sexual partner during sexy fun times or are we considering a street fight? And if a street fight are you limiting that?
You are asking for a black and white answer to a question that doesn’t have a black and white answer. Prosecutors routinely prosecute people for crimes that other people do with no trouble at all.
I think this quote from Telemark’s link would void that contract:
Unconscionability
Unconscionability means that a term in the contract or something inherent in or about the agreement was so shockingly unfair that the contract simply cannot be allowed to stand as is.
It seems to me, the practical distinction comes down to controllability.
Splashing acid on someone, there’s really no easy way to control the amount of damage done. With tattooing, the whole system is set up to be as close to perfectly controllable as possible - the artist doesn’t want lines showing up in the wrong place.
Going after someone in an alley with a knife is clearly less controlled than a surgeon slicing into a patient.
And “punching you in the face as hard as I can” is less controlled than “slap you on the ass”.
So, I’d say, you could probably consent to things where the degree of damage is relatively easy to control, so as to not exceed the agreed upon limits, and so as to not cause damage so severe as to impact on others - like requiring hospitalization, or the like.
Wisconsin’s battery statute, Wis. Stat. 940.19, distinguishes between bodily harm (misdemeanor), substantial bodily harm (class I felony), and great bodily harm (class H or E felony). Consent is only a defense for the misdemeanor.
ETA: The term “substantial bodily harm” is defined by statute, Wis. Stat. 939.22(38):
“Substantial bodily harm” means bodily injury that causes a laceration that requires stitches, staples, or a tissue adhesive; any fracture of a bone; a broken nose; a burn; a petechia; a temporary loss of consciousness, sight or hearing; a concussion; or a loss or fracture of a tooth.
And “great bodily harm” by paragraph (14):
“Great bodily harm" means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.
If the act of battery fits the above criteria, then by statute consent is no defense.
~Max
That actually sounds quite reasonable. So a minor bruise or a scrape/rope burn that doesn’t require medical treatment is okay (with consent), but anything that causes substantial damage to the other person isn’t.
While the greater statutes do not mention consent either way, I believe the legislature intended consent in those statutes to be a continuance from the mention in the first section. After all, what right does the state have to tell me I can’t let myself be battered?
I believe in the bar room scene the punched guy is claiming he did not consent to being punched but was only joking. Interesting case. I’m trying to find it on CCAP but have not yet been able. We thought it was in Kenosha County but maybe it was across the border which may be why I can’t find court records.
Tattooing is regulated by most states. I’m surprised there is no regulation in a few states. This page says Nevada has no regulations for tattooing but it is regulated in Clark county.
I don’t believe that is the proper construction, but I am not a lawyer. You can look at the jury instructions.
Here are the jury instructions for paragraph 1. The jurors are instructed that the state must prove the defendant acted without the victim’s consent.
Here are the jury instructions for paragraph 2. Consent isn’t mentioned. ETA: The comment reads,
Note that this offense does not contain a “without consent” element as does “simple battery” under
§ 940.19(1).
~Max
This sums it up. There is no simple line you can and cannot cross, every case is judged on its merits and what the people involved - assailant, victim, police, judge, jury, etc - think is reasonable. Sometimes they misjudge the situation, sometimes we think they misjudged the situation. Recall that one of Jeffrey Dahmer’s (14-year-old) victims was returned to him by the police, who thought it was just a BDSM game or argument.
So whatever you do, you proceed at your peril. You cannot contract away the right of the state to prosecute anything it deems appropriate. the only question is whether the system will deem your actions criminal in the context.
If I were followed around the bar by some guy saying “Go ahead, punch my nose” I would assume that this is a prelude to him then having a (in his mind) valid excuse to retaliate, and so any assault would instead be self-defense. The only point of contention would be “why didn’t you just leave?” and the logical response “because then he would have followed me outside where there were no witnesses.”
There have been a decent number of assault cases where the one participant says “but I thought she liked it rough”, while obviously she didn’t like it that rough. You proceed at our own risk, both physically and legally.
Perhaps the more interesting example is ice hockey, where the rules are clear on what is not allowed in physical contact - but there are “unwritten rules” that players will engage in fistfights at times. The presumption in playing the game is that the players consent to the sort of behaviour “tolerated” by the league and the overall association. However, there are certain behaviours that are explicitly not tolerated. The player risks ejection, or bans from several games to lifetime, if they violate these - including assaulting the refs, using the hockey stick as a weapon, assorted dirty maneuvers intended to significantly injure, etc.
A recent trivia show pointed out that MMA forbids hair-pulling; certainly this is not the “anything goes” of a bar fight with or without knives, it’s more like a dance with pain. Most of these sorts of sports seek to avoid deliberate serious long-term injuries as opposed to inflicting assorted levels of physical pain, and have a means to “yield” or signal an end to further consent. (It seems to me boxing like some other sports was until recently simply oblivious to the longer-term damage implied in head blows.)
Commercial tattooing is regulated in most states, but people tattoo their friends in their basements with no money changing hands, and people give themselves stick&pokes.