What is Mutual Combat?
Mutual combat is a legal term in some jurisdictions commonly asserted as a defense for why a defendant did not assault another person. In these jurisdictions, the law recognizes that a defendant cannot commit a legitimate act of self-defense of themselves or another person if they have invited the confrontation. Therefore, third-party witnesses to the assault may agree to submit written testimony explaining to the court the mutual combat that occurred.
Although the circumstances vary across jurisdictions, mutual combat is typically described as an agreement between two or more persons to mutually engage in physical confrontation. Successful invocation of this defense varies from state to state, but in most circumstances, voluntary participation in an altercation usually precludes self-defense. Therefore, if a person is charged with the commission of a crime, such as assault, and an act of mutual combat can be agreed upon by both parties and witnesses and presented to the court, it may constitute an affirmative defense .
Mutual combat has a long history in the United States. For example, in the 1870 case of Commonwealth v. Butts, the Maryland Court of Appeals held that an assault and battery was justified under circumstances where two men agreed to fight. The court noted that the parties who had engaged in the consensual attack were breaking the law, but that the law was also intended for the protection of people who had not willingly engaged in a hostile encounter. Therefore, in Maryland, as soon as someone injures the consensual combatant, the combatant can be found guilty of assault. In the 2017 case of United States v. Marts, the United States Court of Appeals for the Third Circuit overturned a conviction for assaulting a police officer based on mutual combat. In that particular case, the appellate court found that the jury instructions for the jury were too limited in scope and did not allow the jury to consider the possibility for reasonable self-defense against the officer.
The History of Mutual Combat Laws
Formerly codified under the common law as "a mutual expression of willingness to engage in physical contact of the type provided for by current penal codes," the term "mutual combat" had evolved into a modern-day criminal defense used in cases where both parties willingly engaged in a violent encounter. According to an article published in the Michigan Law Review, even though the early conception of mutual combat seems not to have worked very well, it has proved much more enduring than other early approaches to handling violently aggressive behavior.
Mutual combat can be found in the 12th century Anglo-Saxon "doctrine of place and scope", a general standard of liability which asked whether the aggressor’s conduct was appropriate to the scene and setting of his or her conduct. Thus, if the aggressor instigated a public duel in the town square, or threw a rock into a nearby tavern, the fact that the engagement took place in a public venue, as well as the fact that there were other individuals involved, would be enough to attribute responsibility to the aggressor. In this scenario, the aggressor would not be seen as having the "moral status or legal rights of a private combatant."
In the middle ages towards the end of the 18th century, the understanding of mutual combat began to shift. As Ian A. Hacking explains in Law and Philosophy (2011), "throughout the medieval period, the crown sanctioned war and violence and some fighting at lower levels as well. Legal rules registered this fact." Under English law, the Crown allowed private fights, but limited them to special circumstances and designated special conditions and rules for the fight. Such fights were usually held in low or no visibility areas, with no guards or spectators.
The case of State vs. Smith in 1840 is one of the earliest state case articulating the definition of mutual combat. The case stemmed from an altercation that occurred between two old friends, William Smith (the defendant) and William Stanley (the decedent). At a gathering, Smith and Stanley began calling one another names. After roughly half an hour, the two separated. They met later at another gathering. After calling one another names, the two began a fistfight. Smith eventually grabbed a nearby cane and struck Stanley with it, causing injuries resulting in Stanley’s death five days later. Smith was indicted for murder and charged with "killing feloniously and of his malice aforethought, William Stanley".
At trial, Smith offered a plea of self-defense. Stanley testified that he grabbed a beer pitcher and threw it against the wall threatening to strike Smith with it. Smith took one look at Stanley and punched him. Smith explained that "I thought it was in good fun." Smith was found guilty of manslaughter and sentenced to two years imprisonment.
The court explained that a participant in a mutual fight cannot claim self-defense or reciprocity if he engages in a second encounter with the intent to use a deadly weapon. It is his duty "to avoid any further encounter until he is no longer in danger." If a combatant "gives his opponent unequivocal notice that the contest is ended [and] so provokes a renewal of the contest at a later time, he will be liable for any death or injury resulting from such subsequent encounter."
As evident in State vs. Smith and other cases, the origin of mutual combat law hinged on the notion that both parties were equally equipped to kill each other. The trend did not last, however, and mutual combat laws began to shift in the early 1900s, becoming less favorable to the defendant as the law evolved over the next century.
The Current State of Mutual Combat Laws in the United States
Mutual combat laws are confined to a relatively few states in the U.S. Among the states that do have such laws are Arizona, Hawaii, Maryland, Massachusetts, Nevada, Pennsylvania, South Carolina and Washington. Certainly, each of these states provides for its particular nuances and wit. Overall, these laws prohibit the imposition of liability upon persons who enter into the fight with an understanding that such is the case, assuming, of course, that no weapons are involved. A traditional rule of tort law in the United States prohibits recovery by a plaintiff who is liable for his or her own injuries. A plaintiff may be barred from recovery by his or her own contributory negligence or the assumption of the risk of injury. From that premise, it is no surprise that "participants" in a fight are barred from recovery where in the state’s wisdom of public policy it is determined that the law will not protect one who voluntarily engages in a violent encounter.
An often-cited case on this subject is McDonald v. State Farm Mut. Automobile Ins. Co., 960 F.2d 664 (8th Cir. 1992). In that case, the court discussed the background of the social utility of mutual combat laws, "Section 76-5-207, included an affirmative defense to liability for breach of the peace by consent of the victim, a provision which surely recognized that the law would not protect one who voluntarily injures another in violation of criminal assault, battery or riot provisions. The clear purpose of the section was to promote and enhance the well-established social utility of private defense against unwarranted criminal assault, battery, or riot." Id. at 666. The law existed to prevent the law from taking the place of the citizen to prevent unwarranted physical assault.
States Where Mutual Combat is Recognized
Some states codify self-defense in the context of mutual consent or invitation. In other words, some jurisdictions have written laws that provide immunity and/or criminal defenses for a defendant if he or she engaged in mutual combat (or at least combat after invitation) with an alleged victim.
Arkansas recognizes mutual combat as a real legal concept and provides statutory immunity in certain circumstances. Arkansas Statute Section 5-2-602(c) provides that "a person who is attacked by another in what would otherwise be mutual combat has no duty to retreat and may stand his or her ground and use reasonable means to resist the attack" (emphasis added). While this statute does not appear to apply to a situation that involves mutual invitation, it nonetheless takes a position that weighs at least in part in favor of a defendant who invokes self-defense in the context of mutual combat.
Florida Statute Section 776.041 gives immunity to an accused "who is attacked in any place where he or she has a right to be." In the context of mutual combat, this looks like a law that would protect a defendant who invoked self-defense in a case where he or she did not invite the combat.
Other states rely on case law rather than statutes. For example, in Case v. State, 928 So. 2d 1219, 1229 (Fla. Dist. Ct. App., 5th Dist., 2006), the Court of Appeals of Florida held that Florida has the "old common law rule of conditional mutual combat," which "permits the person assailed to withdraw from the encounter by retreating to a place of safety," but also stated that "the right to self-defense while present at a place where the assailant has a right to be is not abrogated where the initial aggressor being attacked withdraws to a place where he or she does have a right to be." This illustrates the nuanced way in which different courts can interpret the law when no statutory language exists to clarify intent.
In a case that involved the state’s requirement to prove that the defendant was "not justified" in using force, the Supreme Court of Kentucky has held that a person cannot be convicted of criminal assault if his conduct was justifiable by law. See Grant v. Commonwealth, 851 S.W.2d 168, 171-72 (Ky., 1993) (noting that an instruction that omits the statutory defense of justification renders the trial unfair at its base level). In Grant, the Kentucky Supreme Court further explained that "the justification defense is indeed a vital one," and stated that the evidence supporting it "is sufficient to warrant an acquittal."
States that have not codified any specific version of mutual combat law rely purely on case law in order to render an opinion on cases involving self-defense after mutual consent. In States v. Riggins, 81 P.3d 80, 85 (Mont., 2003), the Supreme Court of Montana stated that "in Montana, on the question of self-defense and retreat, the better rule is that a person under attack who starts and continues a fight cannot afterward, to justify his act, rely on self-defense or retreat." This statement alludes to the fact that some states, like Montana, only protect those who are attacked after an invitation to fight, and not those who actually engage in mutual combat.
The Legal Consequences
Mutual combat, while a culturally entrenched term known to many, carries legal implications that are crucial to understanding its application in law. The law surrounding mutual combat is often murky, and can vary dramatically based on jurisdiction and the nature of the incident in question. In many states, the law presupposes that an individual involved in a physical altercation has legitimacy in doing so, especially if they have been attacked first. However, did the other party in a mutual combat situation do something to provoke the other person to attack? Did either party sustain any damages worth taking it to court about? Florida statutes are clear about the legal implications of mutual combat, and assign penalties in accordance to the severity of injuries sustained.
If both parties in a mutual combat scenario are injured, even if the injuries are relatively minor, it presumes a situation in which neither party can be deemed the victim or aggressor, so neither will be likely to face criminal charges. If the injuries sustained by either party are less severe, a judge may choose to hand down a relatively light fine and court costs for both parties involved. However, if either party was critically injured, courts will often presuppose that there was a serious issue leading up to the attack that would suggest provocation on the part of the attacker, even if it was not in fact true. Injuries that require medical attention by the police officer who arrives on scene , or other medical professionals, will often be considered critical enough that the judge will remove the option of an alternative sentence like community service or a warning in favor of mandating a fine and court costs.
If the assault involved a melee weapon or dangerous instrument, mutual combat laws stipulate that the judge is required to consider the circumstances of the event, and determine how much each party contributed to the injuries sustained. If a majority of fault can be attributed to one person, the court may charge the person more than the other. Even if the armed person didn’t attack first, the court will often be unable to separate the attack from the resulting injuries. If one party loses an eye, suffers a broken leg or has some other injury that limits their ability to function normally, the court is likely to penalize the armed attacker much more heavily than the other party. The penalty for most attacks involving weapons, regardless of the reasons, is a $500 fine and court costs to periodically check in with the judge to see how they’re doing. A judge may also allow an alternative sentence, however, if the injuries were not as pronounced and did not require immediate medical attention. If the injuries are more severe than the attack that caused them, these laws will assume the aggressor is at fault if the other person was more severely hurt.
Examples and Case Law
A significant body of case law has developed over time, providing a clearer picture of how mutual combat is viewed by different courts. Because mutual combat laws are generally embedded in self-defense statutes, these cases often center around other key legal points. Most importantly, a defendant’s culpability becomes an essential litigation question when mutual combat is raised as a defense. The presence or absence of premeditation can have major ramifications for a case when a defendant attempts to use mutual combat as a legal justification for their actions.
A number of key cases illustrate this principle:
• In 1985, the Supreme Court of Wisconsin affirmed a tactical decision by a defendant’s attorney to not argue that his client was involved in mutual combat, despite clear physical evidence of a fight on both sides, because it would have allowed the prosecution to argue premeditated first degree murder. State v. Ward, 362 N.W.2d 166 (Wis. 1985).
• In 1987, the High Court of Australia found in R v. Loveridge (1987, 29 A Crim R 297), that consent was not a valid legal defence to a charge of assault resulting in bodily harm because "the law protects people from serious assaults, even if they consent to them."
• In 2010, the Ohio Court of Appeals upheld a conviction for aggravated arson in State v. Wilson (2010, Ohio App. Unpub. LEXIS 4974), even though the arsonist claimed "mutual combat" with the owner of a property in relation to the fire. The court stated that "defense counsel urged an extreme version of the ‘mutual combat’ doctrine, which is designed to protect a participant in a fight with another from liability where the individual’s actions were in response to specific provocative acts by the person with whom the individual was in mutual combat." Instead, in this case the arson was not a voluntary response to any mistake or backyard brawl, but was a premeditated act of vengeance against the property owner aimed at his shed.
• In 2017, the Supreme Court of Alabama upheld a first-degree manslaughter conviction in Garcia v. State (2017, No. 1150776), finding that "although Garcia’s actions were the direct and immediate cause of Davis’ death, they were not wrongful because they were committed in the excitement of mutual combat. His conviction was therefore due to premeditation." Here, a fight broke out after an altercation at a bar, and adding the fact that the victim wrote a letter to the defendant stating that he was going to kill him meant that the defendant acted with premeditation, nullifying any potential mutual combat/mutiny defense.
A review of mutual combat case law clearly shows that while there are similarities between jurisdictions, there are also fundamental differences. Whether the law allows for a specific charge or not often depends on the jury and its interpretation of key precedents.
Public Opinion and Ethics of Mutual Combat
The concept of mutual combat has garnered attention not only within legal circles but also among the general public. From viral social media videos to viral physical altercations, cases and incidents involving mutual combat have found their way into the public eye. Such visibility brings with it a variety of concerns, from potential misapplication of the law in response to unintentional injuries to fears about the potential normalization of violence among younger individuals. These concerns, however, should be placed in the appropriate context. Recent years have seen an unprecedented rise in access to readily available video surveillance. Evidently, police officers, grand juries, and the public in general have acquired stronger opinions regarding the proper methods of de-escalating a physical confrontation, to say nothing of the strong opinions on when it may be necessary and appropriate to employ a firearm in self-defense. Just as it is impossible to predict the next viral video, it is nearly as impossible to predict the specific public reaction to unexpected incidents. Fortunately, speculative trends in the application of these laws are much easier to discern. As young children have access to greater amounts and quality of information, they respond to that information as best they can interpret it. The problem arises when interpreting the available data leads to potentially harmful responses. The discussion surrounding the ethical implications of mutual combat laws is thus welcome (and, honestly, sometimes necessary) for those who may benefit from special attention being given to recent law. Ethically, mutual combat laws exist at an intersection so complicated that it could easily serve as an entire philosophy course unto itself. Three vignettes demonstrate this difficulty. It bears remarking that many states possess laws or case law granting immunity, or at least a presumption of immunity, to innocent third parties whose actions in a physical altercation are justified rather than provoked. The increasing availability of any video camera has improved accessibility and visibility of many instances of physical violence. Convincing citizens to reach for their camera rather than their fists is exceedingly difficult, especially among those for whom the option of an alternative is less likely. Without this option, the ethical use of physical violence to create good will among those who may witness is a troubling avenue for lawmakers to consider carefully.
The Future of Mutual Combat Laws
As with all laws, the future of mutual combat legislation will likely involve amendments, court proclamations and the inevitable shifting of public attitudes. In the coming decades, as body cameras, cell phone camera and video capabilities, and the ability to easily broadcast live footage to a worldwide audience become ubiquitous, victims of street fights may develop their own methods of redress. Public sentiment about physical altercations between would-be combatants has already changed significantly over recent years. While two young men squaring off on a street corner used to elicit cheers and catcalls , today juvenile sports leagues frequently engage in mass candlelight vigils and moments of silence to mourn victims of gun violence. As reflecting on life after death becomes a preferred form of mourning, spontaneous street fights become less popular with the public, who are increasingly comfortable letting the police and the courts sort out disputes. It is likely that correspondingly, laws pertaining to mutual combat will continue to change to reflect this altered public attitude.