Criminal culpability and boxing
Another high-profile death in boxing has once more shone a spotlight on the moral and criminal implications, and the legitimacy of consenting to harm in the sport.
Sunday 25th February 2018 was a day of celebration for Scott Westgarth. The light heavyweight boxer from Sheffield had defied the odds, breaking his opponent’s undefeated record in a points-based match. The victory gave him a chance to compete for the English title, yet when asked about the prospect of becoming national champion he stated: "I do it for fun, not because I’m going to be a world-class fighter. I’m glad we can keep everybody entertained.”
A few moments later he collapsed backstage and was rushed to hospital, where he died.
His death was a huge shock to the sport. In his final interview before he passed away, he seemed dazed and had trouble finding his words. Perhaps in any other scenario, people would be alarmed seeing someone in that state but in boxing, this is nothing out of the ordinary.
So, why in our civilised society, where moral (and legal) paternalism is so deeply ingrained in our system with conventions such as seatbelt laws forming part of everyday life, is it possible to cause actual, or grievous, bodily harm to another person while remaining protected from criminal culpability?
It is hardly controversial to claim that sports generate positive externalities in a society. Professional boxing in particular is said to be a sport that not only promotes physical fitness and self-discipline, but also has been a great enabler in helping people from lower economic backgrounds to escape poverty and a life of crime. The law, in recognition of this welcome contribution, has treated the sport with some leniency. This particularly light touch of criminal law is a prime example of the judicial reluctance to rule on issues pertaining exclusively to sport.
Is the consent harm or legitimate?
It is fair to say most matches are decided by point-scoring, but sparring often continues until one party delivers a punch resulting in their opponent losing consciousness, and the BMA has raised the alarm for boxing as a result of the long-term harm that can be caused to the eyes and brain from cumulative injuries to the head. Further research finds that even protective headgear cannot shield from this harm, thus the BMA recommended removing the head from being a permissible target. This is a difficult position as there is a balance to be struck. Protecting boxers could come at the cost of a modification that strips away the very essence of the sport.
One of the most knee-jerk responses to this argument is that the harm is being consented to, and therefore, not criminal (volenti non fit injuria). There are several challenges to this. Because it is not possible to precisely know the extent of the harm they will incur, it can be argued that boxers cannot legitimately consent to the harm. It is of course possible to speculate, or consider the worst case scenario, but there is no certainty of outcome. Opponents of this argument may claim that consent actually is given to the contact, rather than the harm. As such, if the contact is consented to, and happens in a way that does not violate the rules of the game, then so is the harm arising from it.
In R v Coney, among the arguments for outlawing prize-fighting was the fact that the injuries were too severe to be justified and were going against human dignity. As discussed, it’s not possible to ascertain the precise extent of injury that will be incurred from each contact, but is it really fair to say that boxers are oblivious to the danger of the sport? Most interviews with athletes seem to demonstrate that the element of danger is part of what makes the sport exciting to them.
“Society is entitled and bound to protect itself against a cult of violence. Pleasure derived from the infliction of pain is an evil thing. Cruelty is uncivilised. Lord Templeman, R v Brown”
Boxing is a popular sport worldwide, with loyal fans and a considerable institutional support system behind it. However, what interests the public is not necessarily in the public interest. It is clear that the judicial attitude towards fighting sports, particularly within the context of criminal law is particularly lax, yet there exists no prevalent principle justifying this anomalous position. Even so, the special status enjoyed by fighting sports under the British legal system is so deeply imprinted in the fabric of British society, that only an act of Parliament could upset the status quo. To pursue such a bold move would be very risky politically and as such it is not reasonably anticipated, at least in the current political climate. It is, however, also worth bearing in mind that the precedent in the United Kingdom of outlawing activities exists, despite their popularity and social acceptance, for example, fox hunting.
While the intellectual foundation underpinning the special status enjoyed by boxing is questionable, responding to this using criminal sanctions is disproportionate. Modifications to the way competitions are conducted (such as the introduction of lighter gloves) should first be considered in order to mitigate damage, without distorting the nature of the sport itself.
Originally published in Mandatory (2018), the official magazine of the Manchester University Law Society.