Dear Sir/Madam,
Consensual Assault in Sport: What crosses the line?
I am writing to you as a young person and a sister of a junior rugby league player. Most of the time, on-field assault is un-addressed and unreported, there is a contradictory standard between athletes and the general public, compromising the 'rule of law'. I write this submission, in order for the establishment of tightened laws against on-field assault. Actions which go outside of the rules of the game should be tightly disciplined. Law enforcements should be more readily involved in on-field violence, rather than 'turning a blind-eye'. The safety of players and the encouragement for young people to take part in contact sport, without fear of assault, is essential.
Thank you for taking the time to read this submission.
Introduction
Sport is an integral part of the Australian Culture, with many Australians being awarded for their achievements. With a need now more than ever, to show a good example to future athletes, this submission offers recommendations for change. The purpose of this law reform submission is to address whether the common law exception to assault in sports should be maintained. This reform will tighten itself specifically to address contact sports with great reference to National Rugby League (NRL) and Australian Football League (AFL).
I will address two significant issues and provide recommendations for change.
1. Issue 1 – Assault which is against the rules but comes as a consequence of playing the game itself, examples include, reckless movements leading to injury (these may come as a consequence of, head-high tackles and shoulder charges).
2. Issue 2 – Violence on-field, which is against game rules but is 'tolerated' on-field. This would include; spitting, on-field fist fights, and threats.
History
'What happens on the field stays on the field', this highlights the traditional perception of on-field assault.
Issue 1: The common law exception to assault in sports was established in the eighteenth century. Pallante v Stadiums, is a significant, affirming the notion that consent could not be a defence to ABH or GBH. However, the Supreme Court recognised that in sporting events harm could be considered 'normal', if it was not inflicted with intent. R v Donovan, established the link between sports and public interest, making reference to the defence of consent.
Issue 2: Violence in sport tracks back to the gladiatorial combat in ancient Rome. In 1985, in an NRL match, players sent of the field proceeded fighting on the side line. Sporting judiciaries have been established to deal with such issues, however have been criticised for using minimal penalties.
Current Law
It must be noted that legislation does not specifically address assault in sport, and much of the exceptions are found in common law.
Statute
The current statute which addresses assault is the Crimes Act 1900 (NSW). Common assault under s 61, refers to, actions of the accused which constitute unlawful consent of the victim. Mens rea elements are fulfilled by either intention or recklessness. Recklessness by unlawful contact is outlined in Macpherson V Beath 1975. The case explores that whilst an accused may not intend 'to cause such fear', his realisation and continuance substantiate recklessness. The test for reckless unlawful contact, is a test of 'possibility rather than probability'. The actus reus element, is the unlawful contact without consent, seen in Darby v DPP.
This legislation 'creates separate maximum penalties for common assault', but does not outline what substantiates an offence.
Case Law
Consensual Assault
What exactly are players consenting to?
The definition of 'consent' is established for sexual assault in s 61HA, but the statute does not make reference to sport. Young suggests that 'consent' cannot be a defence to assault as a requirement for assault is, no consent. In R v Bonora, it was held that, 'the term assault involves the notion of want of consent'. Therefore, consensual assault is not considered an assault.
Case Law – Rugby League / Australian Football League
Recklessness movements made by players during the games
Issue 1: In Boughey v The Queen, a social activity where there is implied consent, is not assault. R v Stanley, has highlighted the NSW approach to assault in sport, stating that players consent to assault as long as it is an action permitted in the regulations of the game. R v Billinghurst, supported this opinion and Williams suggested that consent extends to '[things] that may be expected to happen during the game'.
Billinghurst, also highlights that same cases may 'cross the line'. Justice Cave, in R v Coney, noted that an action in a sport unlikely to cause damage or unintended to, is not assault. However, the case noted that the defence of consent does not extend itself to actions which would probably cause death or cause death itself'.
Expected nature of the game
Assault on-field, such as head-high tackles and shoulder charges, are outside the parameters of NRL and AFL. However, in some cases players have been exempt from criminal responsibility, based on the defence of consent.
In Hilton v Wallace, Wallace caused Hilton to lose his eyesight. The rules of rugby league state a player without the ball cannot be tackled. However, Hilton was unsuccessful, the court reasoned that the action was a, rationally regard outcome in the sport itself. R v Carr, also followed this approach, even though a headhigh tackle lead to the victim's jaw breaking.
However, Giumelli v Johnston, regards an elbowing of the face whilst playing AFL. The court found that the defence of consent did not apply when the infliction of harm was known by the accused. Nevertheless, stated the defence extended to 'commonly encountered infringements of the rules'. Common law has been unclear as to what 'crosses the line', in regard to on-field assault.
On-field Violence
Issue 2: Assaults which is considered 'less serious' (e.g. spitting, on-field fights and threats) are not being dealt with by law enforcement, even though it gains substantial media attention.
Despite, these undertakings being against game rules 'fighting still occurs regularly in both rugby league and rugby union, often going unpunished, or resulting in minor suspensions'. A notorious NRL case revolves around John Hopoate, who numerously threatened players on-field, and sexually assaulted a player by 'finger poking' the players backside. Hopoate has not been criminally charged for these offences, emphasising the lack of intervention by law enforcements.
Aims of Criminal Justice
The aim of criminal justice, is to create legislation which considers various societal interests, however a common idea is that those who commit a crime are subjected to penalty. Philosophical ideas, regarding aims of criminal justice include; Individual Autonomy, Community Welfare and Moral Wrongness.
The 'Individual Autonomy' approach focuses on individual freedom. It follows the notion that criminal law should allow people to behave as they choose, linking to the common law approach of on-field assault. However, the difficulty with this approach is distinguishing between actions that go against implied consent and those which lead to serious harm.
Lacey, refers to the community welfare approach, establishing that criminal justice aims to protect the community. The community needs to be protected from violent behaviour, which is promoted by the commonly held notion that athletes are exempt from criminal responsibility.
Devlin, uses moral wrongness to explore the aims of criminal justice. The is directed at, the understanding of what society considers to be 'immoral'. Allowing athletes to be assaulted goes against this principle.
The aims of criminal justice can be conflicting, and a medium should be drawn.
Arguments for and against – linking to challenges and roadblocks
Encouragement to take part in contact sport and ceasing the promotion of violence is vital.
There are both negative and positive arguments in regard to tightened disciplinary laws in regard to sports violence and reckless plays. In regard to tightened disciplinary for players who act recklessly, points of evidentiary tests and cost-benefits will be analysed. In relation to on-field violence, societal values, consistency of penalties and the media will also be examined. Further, both issues lend themselves to the challenges of separating sporting judiciaries and protecting players.
Issue 1:
Evidentiary Tests
For a person to be criminally responsible the offence must have been committed 'beyond reasonable doubt'. Gardiner submits that 'although most professional sport is now videoed, this can often provide a two-dimensional image that is far from conclusive'. Gardiner notes that due to the 'culture', of contact sports, athletes are less inclined to provide evidence which may incriminate another person. A challenge with the law reform will be satisfying the standard of evidence requirement.
Cost-Benefit
The cost-benefit analysis of bringing cases forward to courts discourages reform in this area. Courts resources, time and processes should not be wasted. Justice Mason in Gionerelli v Wraith, suggested that lawyers must have an eye to client's success and to the speedy administration of justice. However, this should not be the basis of why assault on-field is not being bought to courts. It is reasonable to assume in some instances, there is an innocent misplay of the game, leading to injuries. Yet, on-field fights, spitting, recklessness of players through head-high tackles, spear tackles and shoulder charges should not exempt from criminal responsibility.
Issue 2:
Consistency of penalties
Time and time again, we see specific players being made an example off. Nelson, reiterates this point by assessing the false opinion of charging well-known players to prove a point. Further stating, 'the only way for the criminal law to be more effective is to be more consistent and proactive.' Jake Friend has had a calculation of 1148 high tackle counts this season. Legislation needs to become tighter and clearer in regard to violence on-field and reckless plays. By doing this, law enforcements will become more readily involved in addressing violence on-field, rather than turning a blind eye.
Societal Values
Statute should exemplify the '[values] of society', it is the Governments role to ensure that these values are protected. Attributable to the traditional perceptions and views of on-field sporting, society may be less inclined to impose stricter penalties against common assault on-field. It can be argued that society is more interested in those convictions which lead to serious punishments.
Society is more inclined to have greater deliberation when an offence is serious. Arguably, actions which are commonly seen in sporting matches (e.g. spitting, which was found as a constitution of assault in DPP v JWH), would be less likely to attract public concern. These activities are constantly occurring in matches, however, unlikely to be followed up by police. This raises the question, of whether or not these types of assault on-field are being reported, leading to the idea that these actions which constitute assault are not of public interest.
Although, there is a traditional perspective towards 'toughness' in sport, society's values have changed. In AFL, Leigh Matthews, caused damage to another players jaw, he was fined $1000 and charged with assault. This punishment was lessened by a 12-month good behaviour bond. Sarre, notes how the traditional views that would have regarded Matthews as a 'tough man' have now been replaced by the view of him being a hindrance to the team.
Media
Media plays a fundamental role in the broadcasting of sport, on-field violence is the pinnacle of sports entertainment. Fitzpatrick asks if tighter laws around sports violence will lead to a reduction in the watching of the game, and therefore lead to a decrease in economic contribution.
Both Issues:
Separation of judiciaries
An argument which arises, is the separation between sports jurisdictions and police. Windholz, suggests the reason why police are reluctant to charge on-field assault is because, they 'respect the right of sporting organisations to organise their own affairs'. However, the government needs to intercede to 'deter others from performing the same types of acts', emphasising the need for law reform.
Safety of players
Nelson, suggests 'if an aim of the criminal law is to have some control over violence in sport, then it is not succeeding'. The safety of players should be pinnacle. However, innocent misjudgements and misreading's of plays due to fatigue, should not result in conviction. A major roadblock and challenge for this reform would be determining a balance between, the accused who has taken part in an innocent malpractice and the protection of victims from assault.
Will law reform be effective?
Combat Sports have seen reform, the Combat Sports Act 2013, was established to lessen wrongdoing by players and 'to promote safety'. Scotland, has clear prosecution guidelines altered to sports. It also has guidelines which state that force which goes 'beyond what can be regarded as normal', in a specific sport will be investigated. These were reaffirmed in 2011, since 2013 there has been a 60,000 increase in sports participants. However, these guidelines do not explain how law enforcements should use their powers.
In analysing arguments and other jurisdictions dealings, a medium must be established. Legislation must become more clearer and directive in regard to assault in sport. This will create safer playing, maintain the balance between sports judiciaries and police as well as set clear penalties.
Recommendation
The law must intervene in order to set standards when it comes to contact sports. The following are a list of recommendations that I ask you to consider in order to establish a safer sporting system.
Both Issues:
1) A specific provision in relation to assault, in regard to sports on-field in the current statute, Crimes Act 1900 (NSW), should be established. In this, there should be;
a. A clearer establishment of the definition of consensual assault in regard to sport. This definition should establish what exactly players are consenting to.
b. A clear explanation of when consensual assault as a defence can be used in sport should be incorporated.
c. A clearer determination of what 'crosses the line' in regard to on-field assault is also recommended.
i. It should be clearly noted that recklessness (e.g. reckless spear tackles, shoulder charges and head-high tackles leading to injury) cannot be defended by consensual assault.
ii. It should also be established that the defence does not extend itself to actions that reach far from the rules such as; spitting, fights and threats.
d. A recommendation for certain incidents to be dealt with by police or criminal courts rather than sporting judiciaries should be included. This will ensure actions are disciplined effectively, with substantial discipline for serious issues, rather than the common suspensions given by sporting judiciaries.
2) An implementation of guidelines on how sporting judiciaries should handle penalties for players who breach rules is also encouraged, to create a fairer penalty system.
Issue 2:
3) Police should be more readily involved and encouraged to intervene in situations of on-field violence. This will change the ideology that sportsmen are exempt from criminal responsibility.
a. A program in relation to how violence on-field should be dealt with by sports official (e.g. referrers) and police is also recommended.
I am more than happy to further discuss these issues with you.
Regards,