Appeal from Superior Court of King County. Docket No: 93-1-03592-2. Date filed: 05/24/94. Judge signing: Hon. Ricardo Martinez.
Petition for Review Denied October 7, 1997,
Authored by C. Kenneth Grosse. Concurring: Walter E. Webster, Ronald E. Cox.
The opinion of the court was delivered by: Grosse
GROSSE, J. -- During a rough basketball game, Jason Shelley struck another player and broke his jaw in three places. He was convicted of assault in the second degree after the State successfully argued to the jury that Shelley intentionally punched the other player. On appeal, Shelley claims that he was entitled to argue that the victim consented to the possibility of injury when he decided to play pickup basketball. While we agree that consent may be a defense to assault in athletic competitions, Shelley has failed to establish a factual basis for that defense. Further, while we hold that the consent defense is not limited to conduct within the rules of the games, rather it is to the conduct and harm that are the reasonably foreseeable hazards of joint participation in an athletic contest, we conclude that Shelley's conduct was not a reasonably foreseeable hazard.
On March 31, 1993, Jason Shelley and Mario Gonzalez played "pickup" basketball on opposing teams at the University of Washington Intramural Activities Building (the IMA). Pickup games are not refereed by an official; rather, the players take responsibility for calling their own fouls. During the course of three games, Gonzalez fouled Shelley several times. Gonzalez had a reputation for playing overly aggressive defense at the IMA. Toward the end of the evening, after trying to hit the ball away from Shelley, he scratched Shelley's face, and drew blood. After getting scratched, Shelley briefly left the game and then returned.
Shelley and Gonzalez have differing versions of what occurred after Shelley returned to the game. According to Gonzalez, while he was waiting for play in the game to return to Gonzalez's side of the court, Shelley suddenly hit him. Gonzalez did not see Shelley punch him. According to Shelley's version of events, when Shelley rejoined the game, he was running down the court and he saw Gonzalez make "a move towards me as if he was maybe going to prevent me from getting the ball." The move was with his hand up "across my vision." Angry, he "just reacted" and swung. He said he hit him because he was afraid of being hurt, like the previous scratch. He testified that Gonzalez continually beat him up during the game by fouling him hard.
A week after the incident, a school police detective interviewed Shelley and prepared a statement for Shelley to sign based on the interview. Shelley reported to the police that Gonzalez had been "continually slapping and scratching him" during the game. Shelley "had been getting mad" at Gonzalez and the scratch on Shelley's face was the "final straw." As the two were running down the court side by side, "I swung my right hand around and hit him with my fist on the right side of his face." Shelley asserted that he also told the detective that Gonzalez waived a hand at him just before throwing the punch and that he told the detective that he was afraid of being injured.
Gonzalez required emergency surgery to repair his jaw. Broken in three places, it was wired shut for six weeks. His treating physician believed that a "significant" blow caused the damage.
During the course of the trial, defense counsel told the court he intended to propose a jury instruction that: "A person legally consents to conduct that causes or threatens bodily harm if the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful, athletic contest or competitive sport." Although the trial court agreed that there were risks involved in sports, it stated that "the risk of being intentionally punched by another player is one that I don't think we ever do assume." The court noted, "In basketball . . . you consent to a certain amount of rough contact. If they were both going for a rebound and Mr. Shelley's elbow or even his fist hit Mr. Gonzalez as they were both jumping for the rebound and Mr. Gonzalez'[s] jaw was fractured in exactly the same way . . . then you would have an issue." Reasoning that "our laws are intended to uphold the public peace and regulate behavior of individuals," the court ruled "that as a matter of law, consent cannot be a defense to an assault." The court indicated that Shelley could not claim consent because his conduct "exceeded what is considered within the rules of that particular sport[:]"
Consent is to contact that is contemplated within the rules of the game and that is incidental to the furtherance of the goals of that particular game.
If you can show me any rule book for basketball at any level that says an intentional punch to the face in some way is a part of the game, then I would take another -- second look at your argument. I don't believe any such rule book exists. Later Shelley proposed jury instructions on the subject of consent:
An act is not an assault, if it is done with the consent of the person alleged to be assaulted.
It is a defense to a charge of second degree assault occurring in the course of an athletic contest if the conduct and the harm are reasonably foreseeable hazards of joint participation ...