A Different Ball Game—Why the Nature of Consent in Contact Sports Undermines a Unitary Approach

AuthorBen Livings
DOI10.1350/jcla.2007.71.6.534
Publication Date01 December 2007
Date01 December 2007
SubjectArticle
A Different Ball Game—
Why the Nature of Consent in
Contact Sports Undermines a
Unitary Approach
Ben Livings*
Abstract The criminal offences to which consent may act as a defence fall
into three distinct groups: those against property, sexual offences against
the person and non-sexual offences against the person. This article posits
a counterpoint to calls for a consistent application of the defence across the
various offences to which it may apply, exploring the role of consent as it
applies as a defence to violent criminal assaults, and particularly those
committed during sport. It further examines the way in which the civil
courts have approached consent in largely similar contexts, when assess-
ing claims in negligence arising from personal injury caused by violence in
the sporting arena, and juxtaposes and compares the civil and criminal
approaches. Sport can provide problematic and anomalous situations with
regard to the law, and it is submitted that this is better acknowledged in
the civil law, where the courts have more readily considered revisions to
substantive legal principles.
The subject of consent has rarely been far from the sphere of academic
debate in recent decades. As the doctrine has application throughout the
criminal law, and draws from numerous different sources according to
the offence and the factual circumstances in which it arises, it pertains to
a diverse range of crimes. Debate has therefore stemmed from such
wide-ranging issues as the curtailment of the defence where serious
bodily harm results (and attendant issues of personal autonomy) and
the barrier that proving an absence of consent provides in rape cases.1
Recent developments have included s. 74 of the Sexual Offences Act
2003, which provides a statutory definition of consent, applicable only
to sexual offences,2and was recently examined in Rv Bree.3As regards
non-sexual assaults, the leading authority remains Rv Brown;4cases
* Senior Lecturer in Law, Sunderland University; e-mail
ben.livings@sunderland.ac.uk.
1 The thorny issue of consent as it applies to rape was argued extensively in Rv
Olugboja [1982] QB 320, [1981] 3 All ER 443.
2 Section 74 of which provides: ‘For the purposes of this Part, a person consents if
he agrees by choice, and has the freedom and capacity to make that choice’.
Further guidance can be found in ss 75 and 76, which contain rebuttable and
non-rebuttable presumptions. The legislation addresses many of the issues raised
by the Court of Appeal in Rv Olugboja [1982] QB 320, [1981] 3 All ER 443.
3 [2007] EWCA Crim 256, [2007] All ER (D) 412 (Mar). The case examined the
situation where an alleged rape victim was held to be drunk but not unconscious.
The court refused to extend the meaning of ss 74 and 76 of the Sexual Offences
Act 2003 beyond their own explicit provisions.
4 [1994] 1 AC 212.
534
such as Rv Dica,5Rv Konzani6and Rv Barnes7build on this controversial
ruling, and attempt to delineate the nature and scope of consent in
particular circumstances. The present disparity between sexual and non-
sexual offences supersedes Rv Richardson,8in which consent was held to
operate identically in both sexual and non-sexual offences.
The agglomeration of recent authorities has prompted calls for a
consistent approach to the concept of consent in the criminal law. Elliott
and de Than argue that, in the wake of the Sexual Offences Act 2003,
the law on consent risks being a patchwork of statute and ad hoc case
law,9and suggest that consent be imbued with overarching principles
applicable to all offences and circumstances. They identify three classi-
cations of offences to which consent is applicable (those of sexual and
non-sexual offences against the person, and offences against property),
and propose that the denition found in s. 74 of the Sexual Offences Act
200310 be used as the basis for a universal statutory denition of con-
sent, across all such offences:
All relevant offences should use a single core statutory denition of consent
so that the boundaries of criminality are stated more effectively. Consent is
not a different concept in each offence; special factors may apply, but the
core concept is the same throughout.11
This article concentrates on non-sexual offences against the person,12
and particularly those committed during contact sports such as football
and rugby, and draws attention to the confusion inherent in the defence
of consent as it applies in these contexts. The exceptional considerations
at issue in these activities will be examined in the wider context of the
doctrine of consent in the criminal law, and contrasted with its operation
in the civil law of negligence.
In cases where injury has been inicted during the course of sport, the
intricacies of the doctrine of consent have been explored and argued in
great depth by both the courts and commentators, and such discussions
have been greatly shaped by the policy considerations arising, in par-
ticular, from the leading case of Brown.13 However, it will be seen that
the real determining factor in imposing liability is the nature of the
defendants act itself; to this end, culpability is assessed by reference to
5 [2004] EWCA Crim 1103, [2004] QB 1257.
6 [2005] EWCA Crim 706, (2005) 69 JCL 389.
7 [2004] EWCA Crim 3246, [2005] 2 All ER 113.
8 [1999] QB 444.
9 C. Elliott and C. de Than, The Case for a Rational Reconstruction of Consent in
Criminal Law (2007) 70 MLR 225.
10 Section 74 declares: For the purposes of this Part, a person consents if he agrees
by choice, and has the freedom and capacity to make that choice.
11 Elliott and de Than, above n. 9 at 226.
12 The term non-sexual may cause some confusion here, when considering cases
such as Dica and Konzani; although these arose in sexual contexts, the offences
themselves are not sexual offences, and derive from the spectrum of offences
envisaged by ss 18, 20 and 47 of the Offences Against the Person Act 1861.
13 These will be returned to at various points below.
A Different Ball GameConsent in Contact Sports
535
the rules and usual practice of a sport.14 By contrast, s. 74 of the Sexual
Offences Act 2003 (and the accompanying provisions of ss 75 and 76),
and non-sporting cases such as Dica and Konzani, focus on the victims
freedom of choice and capacity to consent. Although participation in
sport entails a submission to the ordinary incidents of that sport, the
concentration on an objective assessment of the behaviour of the per-
petrator, vis-à-vis the rules and playing culture,15 makes an assessment
of this consent radically different from that encountered in non-sporting
scenarios. It will therefore be submitted that any notion of consent on
the part of the victim of an assault is ill-suited to the context of sports.
The pursuit of consistency as a valid goal
In an erudite and compelling discussion, Elliott and de Than argue that
it is the prerogative of the legal scholar to try to impose order and
coherence on the criminal law, to engage in rational reconstruction.16
They invoke the following passage from Neil MacCormick:
. . . [the legal academic should dismantle the wide range of legal sources]
. . . to reconstruct them in a way that makes them comprehensible because
they are now shown as parts of a well ordered though complex whole. This
requires explanatory principles establishing criteria of what counts as well
ordered and rational . . . Of course, it is an intellectual process, involving a
new imagining and describing of the found order . . . [T]here has to be
some discrimination between the parts that belong in the coherent whole
and the mistakes or anomalies that do not t and ought to be discarded or
abandoned or at least revised.17
This elegant appraisal of the role of the legal academic is proffered in
support of a unitary approach to consent as a logical imperative. Al-
though it may seem incongruous to endorse consistency whilst seeking
to demonstrate the exceptional nature of consent within sport, it should
be noted that, in the above extract, MacCormick himself sagely counsels
against the indiscriminate imposition of consistency. It is submitted that
the different facets of consent do not and should not form parts of a well
ordered though complex whole, but that the doctrine as it is currently
imagined in sports, amounts to mistakes or anomalies that do not t
and ought to be discarded or abandoned or at least revised.
In highlighting the discrepancies between the operation of consent
within and outwith the sporting arena, it will be submitted that any
rational reconstruction of consent demands that sport be treated differ-
ently. The special circumstances of sport mean that it cannot be included
14 The standing of the rules, and how they pertain to the legitimate sport standard
mooted in Barnes, were explored by the author in: B. Livings, ‘“Legitimate Sport
or Criminal Assault? What Are the Roles of the Rules and the Rulemakers in
Determining Criminal Liability for Violence on the Sports Field? (2006) 70 JCL
495.
15 This is a standard posited by Simon Gardiner et al. in S Gardiner et al., Sports Law,
3rd edn (Cavendish: London, 2006) 60612. It envisages both play within the
rules, and other behaviour usually encountered in a particular sport.
16 Elliott and de Than, above n. 9.
17 N. MacCormick, Reconstruction after Deconstruction: A Response to CLS (1990)
10 Oxford Journal of Legal Studies 539 at 556.
The Journal of Criminal Law
536

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