The interaction between the criminal law and non-contact sports. A look at concurrent jurisdictional issues and the defence of implied consent

Abstract

This paper explores when the criminal law should intervene in cases of non-contact sporting violence. The relationship between the criminal law and sporting bodies will be discussed. Sporting bodies can punish effectively. However, there are concerns surrounding the fairness of these punishments because of their commercial nature. The criminal law should intervene when it offers a more effective punishment. Once it has been established that the criminal law should intervene, this paper will explore the defence of implied consent. This paper recommends a test that looks at all of the circumstances of the action, taken from the Canadian case of Cey. This test balances the flexibility and uncertainty issues as well as complying with the New Zealand law relating to consent. This paper then explores when the defence should be removed when there is intentional infliction of harm. Due to the high public policy concerns, the defence should be removed in the majority of the instances of intentionally inflicted harm and always when grievously bodily harm is intentionally inflicted.