Consent to Bodily Injury

Consent to Bodily Injury

Section 2.11(1) makes the victim's consent a defense when it negatives an element of the offense or precludes the infliction of the harm or evil the offense seeks to prevent.¹ Taken by itself, the second of those routes could seem to cover every offense against the person, because a statute aimed at unwanted physical invasion appears to have nothing left to punish once the victim welcomed the contact. Subsection (2) limits that reach for one family of offenses. It applies when conduct is charged to constitute an offense because it causes or threatens bodily injury, the description that fits assault and battery, and it makes consent a defense only if one of three grounds is met.² The text reaches consent to the conduct and consent to the infliction of the injury alike, and the three grounds then decide whether either kind of consent excuses.

The subsection narrows the general rule because the state's interest in the bodily integrity of its people is not wholly controlled by individual choice, and each ground reflects a different reason for yielding to that choice anyway. Minor harms fall within a person's own domain, and the law has little reason to punish what the person chose to bear. Athletic contests and similar joint ventures carry risks that society accepts for the sake of the value those activities produce. The third ground connects consent to the Code's separate rules on justification. Serious injury outside those settings stands differently, since a person who agrees to suffer permanent harm cannot take the agreement back once the harm has occurred, and the community's reason for preventing such harm survives the agreement. Autonomy therefore controls minor harms and socially valuable activity, and it stops short of serious injury outside them.

The three grounds are previewed here and taught in turn in the sections that follow:

• The first ground, injury that is not serious, makes consent a defense when the bodily injury consented to, or threatened by the conduct consented to, is not serious.
• The second ground, sports and joint activity, makes consent a defense when the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest, competitive sport, or other concerted activity not forbidden by law.
• The third ground, consent as justification, makes consent a defense when the consent establishes a justification for the conduct under Article 3 of the Code.

Because the grounds are alternatives, satisfying any one of them is enough, and a defendant who fits none of them cannot rely on consent under this subsection, however freely it was given.³ Whether the assent counts as consent at all is a separate question that later sections take up through the rules on ineffective consent.

The second version shows the mistake this subsection most often produces on an exam. Students lose this issue when they treat agreement to a fight as agreement to whatever injury follows, because consent is a grant of limited permission, and the grounds in subsection (2) test the injury that the consent actually covers or that the consented conduct threatens.⁴ Conduct that goes beyond the agreement receives no protection from it.

Injury That Is Not Serious

Ground (a) is the broadest of the three grounds in the Code's rule on consent to bodily injury, because it covers the ordinary run of minor physical contact. Under it, consent to conduct charged as an offense because it causes or threatens bodily injury is a defense when the bodily injury consented to, or threatened by the conduct consented to, is not serious.⁶ The text gives the inquiry two reference points, the injury the victim agreed to take and the injury the agreed conduct threatens, so the agreement itself sets the yardstick: an agreement to a slap is measured by what a slap threatens. Ground (a) therefore joins two questions. The first is the scope question from the earlier discussion of consent as a limited permission, which asks whether the defendant stayed inside what was agreed. The second is a seriousness limit on the injury within that permission. The general criminal-law statement of the rule is to the same effect, since consent to a battery is a defense only if the bodily harm consented to or threatened by the conduct consented to is not serious.⁷

The reason for the seriousness line follows from why consent matters in criminal law at all. The usual position is that a victim's consent is no defense, because a crime is a wrong affecting the public and so cannot be licensed by the one person directly harmed.⁸ That explanation loses its force when the harm is slight. A person who has agreed to a sting on the cheek has suffered no injury of the kind a battery statute targets, because the conduct was made harmless, and no public interest remains to be vindicated.⁹ Respect for autonomy points the same way, since the law places a high value on individuals choosing for themselves even when others would call the choice unwise.¹⁰ The seriousness limit marks where those reasons give out. Prosecuting a minor, consented-to injury would intrude on private affairs for little public benefit, while a serious injury is the harm the state most wants to prevent, and an agreement to suffer it does nothing to shrink that interest.

The rehearsal slap used earlier is the paradigm of ground (a). A performer who agrees to take a slap as part of the script has been struck intentionally in a way that would be offensive in the abstract, yet the tort illustration treats the contact as privileged.¹¹ The criminal analysis follows the same line, because the injury consented to is a stinging cheek, which is not serious, and the conduct stayed within the agreement.¹² Consent can also reach contact that is actually harmful. In a casino act, Cody agrees to box a former heavyweight champion for a single round, and he cannot later complain of the harmful contact he agreed to take.¹³ A bout like that sits near the seriousness line, because a round against a champion can threaten more than a sting. A defendant whose opponent suffered a serious injury would look to the sports ground in the next section for another route to the defense.

The contrast arises when the conduct outruns the agreement. Consent to a fist fight is consent to the blows a fist fight involves, and it does not authorize the use of a shotgun if one fighter starts to lose.¹⁴ Two facts changed between the slap and the shotgun, and each defeats ground (a) by a different route. The weapon was never conduct consented to, so the agreement does not reach it at all. The injury a shotgun threatens is also serious, so the seriousness limit would exclude it even if the agreement were read generously.

The error to avoid is reasoning that a victim who consented to some contact has consented to every injury that follows. Ground (a) asks about what the consent covered, and an injury beyond that falls outside the defense even when the first blow was welcome.¹⁵ The word serious is not defined in the text of ground (a), so an answer should describe the injury concretely and place it against the paradigms, a sting or a bruise at one end and a broken jaw or a gunshot wound at the other. Where the jurisdiction supplies a statutory definition of serious bodily injury, that definition controls.

Sports and Joint Activity

Ground (a) leaves a gap that ground (b) fills. Many lawful activities regularly produce injuries too serious for the first ground, such as the broken wrist that follows a hard tackle, and a rule that excused only minor harm would leave every participant in those activities open to prosecution. Ground (b) closes the gap by making consent a defense when the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law.¹⁷ The text of this ground contains no seriousness limit, so it operates independently of ground (a). An injury may therefore be too serious to satisfy the first ground and still be covered by the second, which is why a defendant who fails ground (a) should test ground (b) before concluding that consent is no defense.

The reason for the ground lies in what joint activities are and what participants do when they join one. Athletic contests and similar ventures have social value, and injury is a known part of many of them. Each participant accepts exposure to the hazards the others create and imposes the same exposure on them, so the person who is later hurt is usually someone who chose the risk and who exposed the other participants to it as well. Prosecuting every foreseeable bruise or break would make the activities impractical, and it would punish conduct in which the injured person shared. The ground still has to be fenced, because the same reasoning could be stretched to cover almost any violence that happens near a game. Three limits do the fencing: the activity must be joint, it must be lawful, and the harm must be a reasonably foreseeable hazard of it.

The first limit is that the participation must be joint. Consent in these settings is largely implied from taking part, since nobody signs a waiver before a game of touch football, and the question of what a player agrees to is therefore interpretive: it asks what physical contact a person who plays that game impliedly accepts.¹⁸ Because the consent comes from joining, a person who has not joined has accepted nothing. A spectator, a bystander, or a stranger who wanders onto the field is outside the arrangement, and the participants' mutual acceptance of risk says nothing about that person's injury.

The second limit is lawfulness. The text requires that an athletic contest or competitive sport be lawful and that any other concerted activity be one not forbidden by law.¹⁹ A legislature that has forbidden an activity has already judged that its value does not outweigh its harms. Without this limit, participants could turn a prohibited activity into a defense simply by agreeing to carry it out together. In the casino act used earlier, Cody agrees to box a former heavyweight champion for a single round.²⁰ That is a joint athletic contest, and where boxing of that kind is lawful, ground (b) would reach a serious injury such a bout ordinarily produces, even though ground (a) would not.²¹ A brawl staged by agreement in a jurisdiction that prohibits mutual combat is a different matter, because the activity itself is forbidden and the participants cannot borrow this ground's protection for it.

The third limit does the most work in practice. The text requires that the conduct and the injury be reasonably foreseeable hazards of the joint participation, so the question is what the activity ordinarily carries, and participants accept those ordinary risks. Harm that no participant would reasonably anticipate was never part of the arrangement, and foreseeability marks the edge of what was accepted. In Horton v. Suzuki a karate student knew he would face rough contact from classmates and the instructor as part of the class, and the court accepted that he may have consented to a certain amount of harmful or offensive contact during instruction. It found nothing in the record showing consent to being struck on the cheek after class had been dismissed, because the blow had no connection to the instruction and appeared to come from a personal reason.²² That decision is a civil battery case and does not apply the Code, but the boundary it marks is the one ground (b) draws. A participant accepts the contact that belongs to the activity, and a blow struck for reasons unconnected to the activity falls outside it.

Two errors recur on exams. Students lose this ground when they treat an injury that happened during the game as an injury that is a hazard of the game, because the timing of the blow does not make it a foreseeable part of play. The opposite error is to conclude that a serious injury ends the analysis, which confuses ground (b) with ground (a). Conduct at the margins, such as a foul the sport's own rules penalize, turns on whether participants would reasonably foresee it as part of play, and the text frames that question through the word reasonably without settling it by category.

Consent as Justification

Ground (c) is the shortest of the three grounds in subsection (2) and works differently from the other two. Grounds (a) and (b) look at the conduct and the injury themselves, asking whether the injury is serious or whether it is a foreseeable hazard of a joint activity. Ground (c) makes consent a defense when the consent establishes a justification for the conduct under Article 3 of the Code.²⁴ The ground therefore points outward to the Code's general justification principles, which are taught in the neighboring readings on self-defense, defense of others, defense of property, and necessity, and it supplies no separate test of its own. It is a bridge to those readings and not a full topic. Tort law shows the same arrangement, since consent sits beside privileges such as self-defense as a defense that applies once the elements of the wrong have been shown.²⁵

The reason consent is routed this way depends on the difference between a justification and the kind of defense that ground (a) represents. A justification applies when the conduct still causes a legally recognized harm, but the circumstances outweigh that harm by avoiding a greater one or by furthering a greater social interest, so the conduct is socially acceptable and deserves neither liability nor censure. Burning a field to create a firebreak that keeps a raging fire from nearby homes is the standard illustration, because destroying another's property by fire remains a recognized harm that the need to prevent a greater harm outweighs.²⁶ Consent to a slight battery belongs to a different family, because the agreement made the conduct harmless and no recognized harm is left to outweigh.²⁷ That contrast fixes the place of ground (c). Ground (a) covers the case where consent shrinks the harm, while ground (c) covers the case where the harm remains and justifying circumstances outweigh it. Consent in ground (c) is one fact that helps supply the justification, and the justification is the defense.

The error to avoid is treating consent alone as a path around the seriousness limit. When the injury is serious and the conduct is not a hazard of a joint activity, the agreement of the injured person adds nothing unless other circumstances supply a recognized justification, and an answer should identify those circumstances and send the reader to the justification principles to test them. If the facts supply none, ground (c) does not apply, and the analysis ends with the conclusion that consent is no defense.²⁸