# US law - Duels **URL:** \ **Category:** Factual Questions\ **Created:** [March 19, 2005, 6:23am UTC](https://boards.straightdope.com/t/us-law-duels/295286 "2005-03-19T06:23:55Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [March 19, 2005, 6:23am UTC](https://boards.straightdope.com/t/us-law-duels/295286/1 "2005-03-19T06:23:55Z")
Hypothetically, if two persons draw up an agreement to duel (to the death or simply till one person gives up) and one is killed or significantly injured as a result, is there any legal reason that the contract can be used as a defense in court against murder? Would the survivor simply be charged with a lesser crime such as manslaughter? In short, in the USA, is complicity on the part of the victim ever a defense against violent crime? ---
**Author:** ![dakravel](https://avatars.discourse-cdn.com/v4/letter/d/85e7bf/32.png) [@dakravel](https://boards.straightdope.com/u/dakravel)\ **Post date:** [March 19, 2005, 7:02am UTC](https://boards.straightdope.com/t/us-law-duels/295286/2 "2005-03-19T07:02:30Z")
Well, > [@](#): > > Furthermore, dueling was often used as a façade for legalized murder. In 1806, Andrew Jackson—later to become a U.S. President—shot an opponent after the duel had technically ended. By the end of the 19th century, legalized dueling was almost extinct in most of the world. Some American states have laws which establish procedures for legal dueling, but it is unlikely that they would be upheld in court. > > The Constitution of the State of California has a provision providing for a prison sentence and loss of right to vote for engaging in or being a second in a duel, a provision held over from the 19th Century. From [http://en.wikipedia.org/wiki/Duel](http://en.wikipedia.org/wiki/Duel) Dunno if that totally answers your question, but it’s a start at the least. ---
**Author:** ![Valgard](https://avatars.discourse-cdn.com/v4/letter/v/7feea3/32.png) [@Valgard](https://boards.straightdope.com/u/Valgard)\ **Post date:** [March 19, 2005, 8:03am UTC](https://boards.straightdope.com/t/us-law-duels/295286/3 "2005-03-19T08:03:15Z")
Suppose two people get into a fight and the following series of threats are exchanged: “I’m gonna kill you!” “Oh yeah? Well I’m gonna kill YOU!” And then they go at it with knives or guns or just start kicking the crap out of each other…is the last man standing not guilty of murder? They’ve pretty much got a verbal “duelling contract” right there, no? ---
**Author:** ![mittu](https://avatars.discourse-cdn.com/v4/letter/m/ecd19e/32.png) [@mittu](https://boards.straightdope.com/u/mittu)\ **Post date:** [March 19, 2005, 11:59am UTC](https://boards.straightdope.com/t/us-law-duels/295286/4 "2005-03-19T11:59:07Z")
> [@](#): > > In short, in the USA, is complicity on the part of the victim ever a defense against violent crime? In the case of euthanasia the victim is a willing participant but it is still against the law (at least it is in the U.K. and I presume it is in U.S.A. as well) so I would assume that dueling is also against the law. This thread brings to mind the recent case of a cannibal in Germany who, through a website, arranged to meet a man, kill him, then eat him. The cannibal was charged with murder. This quote is from [www.bbc.co.uk](http://www.bbc.co.uk) > [@](#): > > The crime was apparently carried out with the victim’s full consent, however state prosecutor Hans-Manfred Jung told French news agency AFP that the victim’s supposed “death wish” did not change the fact that the killer had wanted to commit murder. So at least in German law the fact that the victim is a willing participant is seen as second in terms of importance to the fact that the murderer still wanted to commit the act. I guess the same could be said to apply dueling, the winner of the duel wanted to kill the victim and should therefore be charged with murder. Also, in the case of a duel could the loser be said to be a willing participant in the act? They did not want to lose the duel, they did not want to die so perhaps the claim that the victim was a willing participant would fall by the way side. ---
**Author:** ![Turek](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/turek/32/18782_2.png) [@Turek](https://boards.straightdope.com/u/Turek)\ **Post date:** [March 19, 2005, 12:12pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/5 "2005-03-19T12:12:47Z")
IANAL (of course) but it’s my understanding that you cannot create a contract to perform an illlegal act. So, any “contract” between the two participants would be non-existant in the eyes of the law. ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [March 19, 2005, 2:34pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/6 "2005-03-19T14:34:17Z")
OK, so you’re still a murderer if you intended to kill the other person. What if you both agreed to engage in an activity so dangerous that one person was likely to die or be maimed but that is not the actual intention. I suppose this needs some clarification at this point; My wife is quite adept at kendo and has been teaching me. A few days ago she (on a whim) said it would be cool to try it with real blades. She was joking BTW we have NO intention of doing something this stupid. But I said “you’d kill me then you’d go to prison and our daughter would be all alone”. She seemed surprised at this and said, “Prison!? What for? I’d only do it if you agreed!” So in short I’m trying to show her that whackin’ someone will have consequences even if they’re partly responsible. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 19, 2005, 5:24pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/7 "2005-03-19T17:24:16Z")
How about a different legal concept - suppose the winner of the duel used the written agreement as evidence that the loser also had a gun and planned on using it to attempt to shot him? Could the winner then argue that he shot in self-defense? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [March 19, 2005, 5:33pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/8 "2005-03-19T17:33:52Z")
> [@Little Nemo](#): > > How about a different legal concept - suppose the winner of the duel used the written agreement as evidence that the loser also had a gun and planned on using it to attempt to shot him? Could the winner then argue that he shot in self-defense? I don’t think this would work. You can only use deadly force in case of imminent threats and there is another way to avoid danger. Don’t show up at the appointed place. ---
**Author:** ![Valgard](https://avatars.discourse-cdn.com/v4/letter/v/7feea3/32.png) [@Valgard](https://boards.straightdope.com/u/Valgard)\ **Post date:** [March 19, 2005, 8:41pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/9 "2005-03-19T20:41:38Z")
> [@zoid](#): > > OK, so you’re still a murderer if you intended to kill the other person. > > What if you both agreed to engage in an activity so dangerous that one person was likely to die or be maimed but that is not the actual intention. > > So in short I’m trying to show her that whackin’ someone will have consequences even if they’re partly responsible. IANAL and it’s been a while since my criminal law class, but I think that’d be something like “reckless endangerment” - doing something that any sane person would know is likely to cause great harm or death to another without specifically wanting to take their life. The definition of murder that I remember is “Intentionally taking a person’s life with malice aforethought”. You killed him and you intended to do so. Homocide was just the term applied to taking a person’s life - murder is homocide but so is killing in self-defense or an accidental killing. Intent and planning were the elements that were critical in deciding murder. ---
**Author:** ![Tabby\_Cat](https://avatars.discourse-cdn.com/v4/letter/t/6a8cbe/32.png) [@Tabby\_Cat](https://boards.straightdope.com/u/Tabby_Cat)\ **Post date:** [March 19, 2005, 9:02pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/10 "2005-03-19T21:02:47Z")
Basically, you can’t consent to grevious bodily harm. In the UK, there was a case where a couple of people were caught, um, in acts of pretty hardcore “pound-nails-through-mr.happy” sadomasochism. Although they were all consenting, consent was not a defence to S47 “Actual bodily harm”, which is more or less anything more than a bruise. That was R v Brown, also R v Wilson, and some others… [More info here](http://www.lawteacher.net/Criminal/Non%20Fatal%20Assaults/Consent%20Wilson.htm) Sports like boxing and such were distinguised by means of “public policy”, where it was in the public interest to allow consent to battery. The situation may be different in the US, but that’s the general gist of it. ---
**Author:** ![Tabby\_Cat](https://avatars.discourse-cdn.com/v4/letter/t/6a8cbe/32.png) [@Tabby\_Cat](https://boards.straightdope.com/u/Tabby_Cat)\ **Post date:** [March 19, 2005, 9:07pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/11 "2005-03-19T21:07:45Z")
Oops - I seem to have linked to R v Wilson, which was the case saying that consent to battery needed public policy justifications, in that case, the sanctity of the marital relationship. [R v Brown](http://www.lawteacher.net/Criminal/Non%20Fatal%20Assaults/Consent%20R%20v%20Brown.htm) > [@](#): > > Held (Lord Mustill and Lord Slynn dissenting) – Consensual sado-masochistic homosexual encounters which occasioned actual bodily harm to the victim were assaults occasioning actual bodily harm, contrary to s 47 of the 1861 Act, and unlawful wounding, contrary to s 20 of that Act, notwithstanding the victim’s consent to the acts inflicted on him, because public policy required that society be protected by criminal sanctions against a cult of violence which contained the danger of the proselytisation and corruption of young men and the potential for the infliction of serious injury. Accordingly, a person could be convicted of unlawful wounding and assault occasioning actual bodily harm, contrary to ss 20 and 47 of the 1861 Act, for committing sado-masochistic acts which inflicted injuries which were neither transient nor trifling, notwithstanding that the acts were committed in private, the person on whom the injuries were inflicted consented to the acts and no permanent injury was sustained by the victim. ---
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [March 20, 2005, 1:28am UTC](https://boards.straightdope.com/t/us-law-duels/295286/12 "2005-03-20T01:28:22Z")
Oddly, dueling is specifically prohibited under the (American) Uniform Code of Military Justice. It is defined as ‘prearranged deadly combat.’ Never heard of anyone being charged with it. On the other hand I have seen a case of ‘abuse of a public animal.’ ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [March 20, 2005, 9:28am UTC](https://boards.straightdope.com/t/us-law-duels/295286/13 "2005-03-20T09:28:46Z")
> [@Paul in Saudi](#): > > Oddly, dueling is specifically prohibited under the (American) Uniform Code of Military Justice. It is defined as ‘prearranged deadly combat.’ Never heard of anyone being charged with it. > > On the other hand I have seen a case of ‘abuse of a public animal.’ OK I’m sorry, but I have to ask; what the hell constitutes a “public animal”? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 20, 2005, 1:32pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/14 "2005-03-20T13:32:35Z")
How about the [Regimental Goat](http://www.rwfmuseum.org.uk/en_faq.html#goat) of the Welch Fusiliers? He’s a member of the Regiment and has a Goat Major looking after him. ---
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [March 20, 2005, 2:24pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/15 "2005-03-20T14:24:08Z")
A mule (we still got 'em), a police dog, or in the one case I know of, Blackie our company cat. ---
**Author:** ![Tabby\_Cat](https://avatars.discourse-cdn.com/v4/letter/t/6a8cbe/32.png) [@Tabby\_Cat](https://boards.straightdope.com/u/Tabby_Cat)\ **Post date:** [March 20, 2005, 3:17pm UTC](https://boards.straightdope.com/t/us-law-duels/295286/16 "2005-03-20T15:17:03Z")
Police horse?