Why Public Health Policy Should Redefine Consent to Assault and the Intentional Foul in Gladiator Sports.

I INTRODUCTION 2 II SEEING RED: HOW PUBLIC HEALTH POLICY HAS NEGLECTED TO BALANCE THE HEALTH RISKS AND BENEFITS OF GLADIATOR SPORTS 4 A Research on Human Aggression and Self-Restraint 5 B The Tenuous Influence of Public Health Research on Sports Policy 9 1 Risks of Serious Injury in Gladiator and Non-Gladiator 9 2 Legal Doctrines Justifying Public Health Intervention for 14 Sports Gladiator Sport Safety C Recent State Regulatory Measures to Increase Safety in Gladiator Sports 18 D Recognition of the Physical, Social, and Mental Health 22 Benefits of Gladiator Sports III DEVELOPMENT OF THE CRIMINAL CONSENT DEFENSE AND CIVIL PRIVILEGE TO ASSAULT AND BATTERY IN GLADIATOR SPORTS 28 A Consent Defense to Criminal Assault 29 B Combating Civil Liability through the Consent Privilege and 31 Assumption of the Risk 1 History of the Restatement of Torts Approach to Civil 32 Liability for Sports Injury 2 Common Law and the Minimal Duty of Care to Avoid Sports 38 Injury C The Criminal and Civil Liability of Minor Athletes in 42 Gladiator Sports IV SAVING THE GLADIATOR: RESTRICTING THE INTENTIONAL FOUL 44 A Athletic Rules and Judicial Reform Sanctioning the Intentional 44 Foul B Statutory Reform: The Impact of Public Health Police Power on 50 the Intentional Foul V CONCLUSION 54 I. INTRODUCTION Aggressive gladiator sports, (2) such as boxing, martial arts, and American football, are legally permitted to exist in part due to the consent to assault defenses in criminal and civil law. (3) However, these defenses have always been tempered by required avoidance of permanent injury and death, an unreasonable level of harm to which no one may legally consent. (4) The rules of the game reflect this, where what constitutes a foul and corresponding penalty are motivated by both fair play and player safety. Unfortunately, in practice the intentional foul undermines this effort. (5) This tradition of bending the rules for strategic gain conflicts with the efforts of an array of new public health measures focused on player safety, particularly those aimed at preventing traumatic brain injury. However, calling for a ban on persistently dangerous sports for recreation, amateur and professional play at all ages is premature. (6) In order to preserve these sports, which provide excitement, confidence building, and health benefits, a more balanced reform measure could instead call for restrictions on the overly generous consent defense to assault in sports when intentional misconduct is involved, while continuing with ongoing efforts to improve prevention of accidental injury. State legislatures have adopted an abundance of new mandated training provisions for youth safety in the wake of heightened public awareness of contact sports-related traumatic brain injury. (7) Within the individual governing athletic bodies are safety-related reexaminations of the rules of the game, such as defining interference or helmet specifications or stricter penalty provisions. (8) Without enforcement of safety related rules, however, such measures are minimally effective. If personal injury liability were to attach more readily to players who intentionally violated the rules of the game, as well as to trainers and coaches who advocate intentional foul use risking player safety, then a symbolic impact of a handful of cases could have far-reaching benefits. (9) In the most severe cases of deliberate sports injury, greater judicial willingness to apply criminal penalties would achieve a similar effect. …