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One of the fundamental issues in law is the tension between freedom and social constraint. This has become prominent recently in the area of sport where the law has faced issues of whether or not to interfere with the freedoms previously enjoyed by individual sports and their participants.[1]
In this context, two particular dilemmas have emerged recently in sport. The first relates to the activities loosely regarded as “sport” which are seen as so unacceptable to society as a whole that they should be labelled “illegal” and banned. In this regard, activities such as cage-fighting, fox-hunting, and competitions involving animal fighting have been under recent spotlight.[2] The second dilemma relates to the degree to which certain extreme actions within individual legal sports should also be proscribed.
This article will consider these issues by reflecting on the concept of sport and the growing public demands for social control and legal intervention. The article will then focus on these issues in the context of the sport of boxing, which recently has captured significant world and media attention.[3] In conclusion, the article will reflect on the patterns that have emerged and the lessons for the future.
The activity of sport as we know it is generally regarded as a physical confrontation played out within a framework of defined rules.[4] In the past, sport developed as a recreation or pastime, a way of either breaking free from the everyday activities of life, or training citizens in the values of that community.[5] Historically, sports generally involved either competitions of bodily skill between human beings, or persecution and often the ultimate slaughter of animals.[6]
The growth of sport was accompanied by various sets of rules which were game-specific in nature and, in New Zealand, emphasised principles of non-intervention and the traditional British notions of fair play.[7] Today, however, this has changed noticeably. We have witnessed a growing movement towards a much-increased intervention in the daily lives of the citizen, which has affected sport.[8] Further, the profound transformation in the concept of sport itself, since the nineteenth century in particular, has been accompanied by steadily increasing intervention by the law and the courts into matters involving sport.[9]
There are two fundamental bases supporting the argument that the law should not stop at the boundary of the sports court or field. The first involves the notion of universality. Just as the community and individual victims are entitled to protection from abuse which occurs outside the sporting arena, such as common assaults, road traffic infringements[10] and business fraud, so too should remedies lie for breaches of the law of the land which happen within the context of individual sports.
The second foundation for this interventionist argument involves the notion of community morality and is summarised in the words of Lord Devlin:
There is only one explanation of what has hitherto been accepted as the basis of criminal law and that is that there are certain standards of behaviour or moral principles which society requires to be observed; and the breach of them is an offence not merely against the person who is injured but against society as a whole.[11]
This idea of community morality does not exclude the notions of the classical liberal theorists [12] that individual freedom and non-intervention by the State are desirable.[13] Rather, the focus for a proper justification of intervention by the law in these areas is aptly argued by J S Mill:
the only purpose for which power can be rightfully exercised over a member of a civilised community against his will is to prevent harm to others.[14]
Against the above background I shall now turn to the sport of boxing, and sketch the history of its interaction with the law and the modern imperatives for increased legal and social control.
In early English law and society, boxing matches were seen to serve a useful purpose described once as:
in reality no more than a friendly exertion of strength and dexterity. They are manly diversions, they tend to give strength, skill and activity, and make fit people for defence.[15]
An early case involving the issue of what constituted a lawful boxing contest was R v Young.[16] Here, one of the participants in a sparring bout with gloves conducted in a private room died from injuries sustained after falling against a post. His opponent was charged with manslaughter. Medical evidence was produced which claimed that sparring with gloves was not inherently dangerous. The judge accepted this and his further directions to the jury emphasised that the bout had occurred in private and there had been no breach of the peace. Glanville Williams has succinctly described such incidents and the rationale for the law to intervene at the time in this way:
the death of one of the combatants in the ring from exhaustion or injury was very common, and serious riots not infrequently took place when the onlookers, to save their bets, cut the ropes and forcibly put an end to the fight. These riots were of more concern to the magistrates than the injury received by the combatants, because they carried a greater threat of extensive civil disorder.[17]
In this case it was accepted that, in relation to the participants themselves, a display of the skill of sparring was not illegal.
However, the law came to draw a distinction between consensual bouts of fighting in private and prize-fighting. In R v Orton,[18] the participants wore gloves but still severely punished each other. The jury found that this was a prize-fight rather than a mere exhibition of sparring and it was therefore illegal. Furthermore, knuckle fights, which often proved to be extremely brutal, became a target of the courts in the nineteenth century. This was so even though the bare knuckle protagonists consented fully to the contest.
In what has been seen as the leading case on the topic of unlawful fights, R v Coney,[19] the court held that a knuckle fight in public before spectators who bet on the outcome was illegal as a prize-fight. Here, the consent of the protagonists was seen as no answer to a charge of assault, and spectators and others aiding and abetting the fight could also be guilty of assault.[20] Lord Coleridge CJ said:
I conceive it to be established, beyond the power of any argument however ingenious to raise a doubt, that as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace. An individual cannot by such consent destroy the right of the Crown to protect the public and keep the peace.[21]
Stephen J said:
the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many grounds.[22]
And Hawkins J said:
Nothing can be clearer in my mind than that every fight in which the object and intent of each of the combatants is to subdue the other by violent blows, is, or has a direct tendency to, a breach of the peace, and it matters not, in my opinion, whether such fight be a hostile fight begun and continued in anger, or a prize-fight for money or other advantage.[23]
One of the major implications from this decision is the notion that society has the right to intervene in dangerous contests in order to protect freely consenting pugilists from the physical harm which is a natural consequence of their own actions.[24]
In 1890, however, the supporters of boxing fought back. The Marquis of Queensbury rules were formulated with the general intention of improving safety standards in boxing so that the activity could be accepted as legal. Bare knuckle boxing was replaced but its opponents would say that nevertheless the essence and spectacle of pugilism was preserved.
The anti-boxing lobby of the day was not satisfied and, in 1901, in R v Roberts,[25] the view that boxing was now a new and safe form of contest was challenged. This challenge argued that, despite the rhetoric, little had really changed with virtually all the evils of the prize-fight still retained. The judges, however, rejected this argument. Not surprisingly, they held that boxing under the new Marquis of Queensbury rules was not prize-fighting but was merely an amicable demonstration of the skill of sparring and was accordingly legal. It was this approach which provided the somewhat unsteady foundation for the world of boxing in the twentieth century.
Boxing as a pastime and an industry continues today. Professional boxing, particularly in North America, is big business:
Added to the fans’ emotional investment is financial investment in boxing. Millions of dollars are bet on big matches. Fans pay hefty sums to watch the matches on cable television at home or on closed-circuit television in theatres. Like any other multi-million dollar product on the market, boxing is heavily hyped by promoters and by the media. [26]
Most boxers are said to be:
from poor, working-class backgrounds. Many are members of minority groups for whom boxing may seem to be one of the few ways out of the misery they were born into ... an impoverished society (such as in many Latin American nations) or an economically depressed city (such as Detroit) is fertile ground for a flourishing boxing industry.[27]
Current criticisms of boxing are commonly expressed by commentators in a forceful way:
However ancient, and lauded with the rhetoric of noble action, the ‘manly art of self defence’ regularly produces a vegetable-like state in its hero-victims. There is a dangerous dynamic at work here. Young men, usually from minority and disadvantaged backgrounds, become lured into a gradual process of physical self-sacrifice, the motive being the lure of celebrity-status, the big purse, and the adulation of a small but vocal public.[28]
And, in a recent issue of The Times, London correspondent Simon Barnes, in commenting on the June 29, 1997 Holyfield - Tyson fight, said:
Only boxing makes a virtue of violence ... [and] ... there is no moral to be found here for the sport of boxing. That is because boxing does not have such things.[29]
Modern professional boxing and its participants are a world away from what has been described in the early cases as amicable demonstrations of the skill of sparring. The pressures from promoters, spectators the media and others involved in boxing today are to see action, excitement and overwhelming knock-outs. The role of the boxing referee as a result has become increasingly difficult. Referees are officially required to ensure that a fight ends before someone is seriously injured, whilst at the same time they must meet the demands of the fans to see that the contest lasts the scheduled number of rounds.
In recent years there has been significant and growing medical and scientific opinion which has claimed to expose the dangers of boxing.[30] The sight of former world heavyweight boxing champion Muhammid Ali staggering and slurring his way through life in the 1990s presents a compelling picture of the likelihood that systematic and repeated blows to the head of any boxer will often cause brain damage.[31]
In spite of the above developments, boxing has survived and the law has continued to adopt a permissive approach.
In the 1976 Australian decision in Pallante v Stadiums Pty Ltd (No 1),[32] the issue as to whether a boxing contest conducted under official Australian rules was a prize-fight and therefore illegal had to be determined. The plaintiff here had received injuries in the contest which affected his eyesight and he brought an action for damages against the promoter, the organisers, the referee and his trainer. For the defence it was argued that the contest was a prize-fight and, since all prize-fights were illegal, the plaintiff could not sustain these proceedings as they would be based upon an unlawful action. McInerney J took the approach that the correct test as to whether a boxing contest was illegal was the need to show that the infliction of blows was intended to do grievous bodily harm. He rejected arguments of counsel that boxing did indeed involve the complete subduing of an opponent with little regard for the effects. His conclusion was that boxing as practised in the 1970s “predominantly as an exercise in boxing skill and physical condition in accordance with the rules” was not unlawful and should not be seen as criminal activity.[33]
The “grievous bodily harm” test, applied by McInerney J in Pallante to determine the legality of professional boxing contests, may well attract questions in the future.[34] It is a distinctly more lenient test for this specialist sporting circle than that propounded by the English Court of Criminal Appeal in R v Donovan, [35] where the Court ruled that consent could not be a defence to a criminal charge where the injury caused was “more than transient or trifling”.[36] It may well be that the Court in Donovan , in devising its test, was swayed by the comparative youth of the victim giving consent and the nature of the perversion involved in the episode to which she had consented. Suffice to say, however, the rules suggested in these two cases are inconsistent.
A central issue in the justification of boxing as a legally tolerated sport has been the notion of consent of the participants. In stepping into the ring, boxers have been regarded as expressly or impliedly consenting to the risks and hazards of the sport.
I shall adopt the analysis propounded by Smith and Hogan in relation to the consent defence to criminal charges in sporting matters.[37] They have suggested that the consent defence raises two distinct questions:
(a) Did the complainant consent to the act?
Issues such as the age, competence and mental capacity of the consenting participants become relevant to the question of whether consent was freely given. With boxers who suffer from diminished capacity induced by “punch-drunk” syndrome, issues of consent become problematic.
In many boxing situations the true relationship between fighter and agent and between fighter and promoter/organiser is often an exploitative one. Pressure from agents and others to accept fights is such that a boxer’s agreement is on occasions achieved through something approaching undue influence. If a relationship is not an equal one, which it rarely, if ever, is, then the real danger exists that freedom of choice and consent will be illusory.
In addition, the lure of the big purse and media hype for the professional fighter appears extremely attractive when it is reinforced by agents, promoters and their menagerie. The often surreal quality of this situation clearly influences a boxer’s choices, and, it could be argued, unduly so.
The question may be raised as to what boxers consent to. Do the participants consent to the blows which are struck or to the particular injuries they risk? If a fighter was asked the question: “Do you consent to dying in the ring?” the answer would be “no”. Yet, the reality for most boxers is that the blows they sustain will at least shorten their lives and, at worst, they may ultimately leave the ring in a vegetable state or dead.
Once consent is given and a fight commences, the question arises as to whether there is ever any real possibility of a participant withdrawing the agreement to fight.[38] Clearly a bout does not conclude until the referee stops the fight, a fighter’s trainer surrenders on the fighter’s behalf, the three, four or 15 rounds scheduled for the bout are over, or the boxer is knocked unconscious. Although a boxer could technically “take a dive” to end the fight, this is regarded as cowardice and is simply not an option for most fighters.
In an inherently dangerous sport like boxing, for consent to be truly free and effective, there may be a need for consent to be renewed by each participant at the end of each round, or after each major blow. The supporters of boxing would, no doubt, scoff at the impracticality of such a requirement. Also, the pressure on the participants to renew their consent from their paying audience, media, promoters and organisers would be immense. This simply points to the illusory nature of consent in the boxing context once the participants step into the ring. The health, safety and even the life of a fighter depend often on the decisions of others - the referee, trainer, promoter and even to some extent the paying public.[39]
(b) Was the act one to which the complainant could effectively consent?
The fundamental question arises as to whether public policy should permit human beings to consent to this type of activity.
With instant and regular television and media coverage (and slow-motion replays) of what is often a brutal engagement at the professional level, is this giving the best messages and examples to our children and society generally?[40]
Consensual fist fights outside the boxing ring - on the street and in the car-park - are generally regarded as unlawful.[41] Opponents of boxing ask why there should be any distinction when the protagonists wear shiny trunks and step into a ring?[42]
Supporters of boxing argue that, as a sport controlled for more than a century by the Queensbury Rules where all participants wear gloves, it is rightly regarded as being different from street fighting.[43] The opposing view points to the extent of injuries caused by blows in the “controlled” environment of the boxing ring (a powerful blow to the head, even from a gloved fist, can be lethal) and maintains that it is right to protect pugilists from the consequences of these actions.
The protection of animals from injury or death caused in organised fights has long been accepted as a proper goal in our communities.[44] The obvious question is why similar rules should not apply when the organised fight is between human beings.[45]
As the views of a community move over time, as the generally accepted ideas of what should be tolerated and what constrained gradually change, the community’s legal principles are called upon to reflect those wider changes.
The sport of boxing highlights the tension that exists in the law between the competing demands of tolerance and individual freedom on the one hand and the need for social control and intervention on the other. There is no doubt that, in a boxing match, a fighter trying to knock out his or her[46] opponent clearly intends to cause harm and probably serious harm, which is normally a sufficient mens rea for the crimes of murder and assault. In many cases, the fighter’s action would arguably satisfy the grievous bodily harm test of McInerney J in Pallante.[47] We have seen that the consent defence, which has justified boxing as a lawful activity in the past, is itself subject to significant philosophical and practical difficulties.
Yet few cases have reached the courts to test the role of boxing and the continued efficacy of the defence of consent. In the few prosecutions that there have been, a generally permissive approach has been adopted. Following these lines, in the House of Lords decision in R v Brown,[48] all of their lordships accepted that boxing is at present lawful. Boxing was seen as an exception to the crimes of assault and murder, a special case which, in the words of Lord Mustill:
for the time being stands outside the ordinary law of violence because society chooses to tolerate it.[49]
The words “for the time being” and “chooses to tolerate” may well foreshadow a time when the increasingly cogent arguments for social control and legal intervention in the sport of boxing may prevail.
[*] Senior Lecturer in Law, University of Waikato.
[1] As to the broader issue of the need for certain controls in a civilised society to preserve people’s general freedoms (including freedom to participate in leisure) see Clarke, J and Critcher, C The Devil Makes Work - Leisure in Capitalist Britain (1985).
[2] The Dominion, Wellington, 28 August 1997 (cage fighting), Waikato Times, 5 August 1997 (fox-hunting), and Sunday Star-Times, 10 August 1997 (animal fighting competitions).
[3] The June 1997 ear-biting incident in the aborted Holyfield-Tyson heavyweight title fight has again drawn world attention to the “discipline” of boxing.
[4] See Barnes, J Sports and the Law in Canada (1996) 1-4. Definitions of “sport” include a wide range of games, competitions and undertakings. The sports of the ancients included chariot racing, gladiatorial contests, field sports, marathon running and wrestling. The middle ages saw jousting, hunting, fencing, archery, golf, bowls, horse-racing, animal-baiting and duelling amongst the range of pastimes featuring regularly as “sport”. Subsequently, sports such as rugby, soccer, cricket, tennis, netball, cycling and motor-racing developed, and more recent additions are baseball, gridiron, snowboarding, water-skiing, triathlon, and touch rugby. Throughout, wagering (betting) on sporting contests was an integral part of many of these activities.
[5] See Healey, D Sport and the Law (1996) 12-15.
[6] For example, cock fighting, bull baiting and bear baiting, all featuring growing degrees of gambling as an incidental part of the activity and shooting, foxhunting and fishing. See Cashmore, E Making Sense of Sport (1990) 41-53.
[7] See Grayston, E Sport and the Law (1987) 12-18.
[8] Recently, we have witnessed too the growing movement in society generally to develop controls in areas such as domestic violence, pornography, child abuse and drug abuse. Some would say that we should, however, contrast the economic positions adopted by recent New Zealand Governments with their claimed hands-off, laissez-faire approach and privatisation policies.
[9] The explosion in commercialisation and commodification of sport - the new entertainment spectacle - dominated by media and television interests, professionalism and employment contracts, merchandising, sponsorship, ownership of teams and sporting leagues are just a few of the many matters affecting sport and lawyers in the twentieth century.
[10] This is exemplified by the change from the original road traffic rules of the 1890s requiring a person marching on foot with a red flag to precede all motorised vehicles, to current road safety rules requiring compulsory disqualification for drunk or drugged drivers. The rationale for today’s drink-driving disqualification laws surely reflects an abhorrence of such universally acknowledged anti-social behaviour and a need for it to be severely penalised. Some might question whether anti-social sporting offenders should be judged by similar principles.
[11] Devlin, Patrick Lord The Enforcement of Morals (1965) 6.
[12] Such as Locke, Hobbes, Mill and Smith.
[13] These classical ideals of non-intervention in people’s lives are seen in areas as diverse as free trade, opposition to censorship and pornography laws, freedom of contract and the notion that “an Englishman’s home is his castle”.
[14] Mill, in “Essay on Liberty“ quoted in Williams, “Consent and Public Policy” [1962] Crim LR 74, 76.
[15] Foster, M Crown Law (1762) 260.
[16] (1866) 10 Cox 371.
[17] Williams, supra note 14, at 79.
[19] [1882] UKLawRpKQB 30; (1882) 8 QBD 534.
[20] However, the court in this case held that clear evidence of aiding and abetting the fight was necessary to justify a charge of assault - mere presence at the contest was not enough.
[21] At 567.
[22] At 549.
[23] At 554.
[24] R v Coney was regarded as authoritative in R v Donovan [1934] 2 KB 498, where the appellant in a private setting beat a 17-year-old girl for purposes of sexual gratification, it was said with her consent See below p 94.
[25] The Sporting Life, 20 June 1901.
[26] Messner, Michael A and Sabo, Donald F Sex, Violence and Power in Sports (1994) 77.
[27] Ibid, 77-78.
[28] Ritchie, Jane and James Violence in New Zealand (1993) 100-101.
[29] The Times (London) 2 July 1997.
[30] In Australia on 5 June 1986 the National Health and Medical Research Council endorsed a report that overwhelming medical evidence existed that boxing could cause brain damage, and recommended that boxing be banned in that country (Kelly, G M Sport and the Law - An Australian Perspective (1987) 261). See also Walsh, “Boxing: Regulating a Health Hazard” (1994) 11 Journal of Contemp Health Law and Policy 63.
[31] Note the recent film “When We Were Kings” which documents the heavyweight fight between Muhammid Ali and George Foreman in 1974.
[32] [1976] VicRp 29; [1976] VR 331.
[33] At 341-343.
[34] See Saxon, “Whatever Happened to Pallante - the Boxer who sued for Injuries Sustained in the Ring?” (1974) 4(3) ANZ Sports Law Association Newsletter 1 and 10-11.
[35] R v Donovan, supra note 24.
[36] At 509.
[37] Smith and Hogan Criminal Law (8 ed, 1996) 422.
[38] In the same way, in recent cases involving rape, the complainant’s ability to withdraw consent at any time has been acknowledged and preserved. The acknowledgement in these cases that the word “no” means “no”, so that consent must be truly free to be effective, would have equal application in the sporting context.
[39] Virtually none of these people would be neurosurgeons or neurologists with skills to detect the injury which is really occurring inside the damaged head and body of a battered fighter.
[40] Some would argue that televised violence in sports rarely reaches the level of brutality achieved in some popular television programmes. However, this may all be part of a major de-sensitisation to violence which is increasingly occurring on television.
[41] See R v Jobidon (1991) 66 CCC (3d) 454 (Supreme Court of Canada) and Wadham, “Consent to Assault” [1996] New Law Journal 1812.
[42] See Kelly, G M Sport and the Law (1987) 243-246.
[43] See Syrota, “Consensual Fist Fights and other Brawls: Are they a crime?” (1996) 26 Western Australian Law Review 169.
[44] For example, cock-fighting, bull-baiting and bear-baiting have long been outlawed (see eg the English Cruelty to Animals Act 1835) and organised dog-fights too are unlawful (see the New Zealand Animals Protection Act 1960, s 3(c)).
[45] A possible answer is that, unlike human boxers, animals have no choice in the matter and thus cannot be seen to “consent”. But, again this raises the issue of presuming what is a true consent of the participants.
[46] In New South Wales, boxing between women is illegal, whereas in Victoria and New Zealand it is currently legal.
[47] Supra note 32.
[48] [1992] UKHL 7; [1993] 2 All ER 75.
[49] R v Brown [1992] UKHL 7; [1993] 2 All ER 75, 109.
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