Q. If two service members agree to fight each other as a way to settle a dispute, can they be criminally charged with assault even though they both agreed to the fight?
A. Just because someone says "hit me" doesn't make the invited act of violence defensible.
Troops who engage in "mutual affrays" can be charged with and convicted of assault by battery in violation of Article 128 of the Uniform Code of Military Justice. That's because "[t]he law protects a societal interest in ensuring its members are free from injury or harm, and protects the public from exposure to such affrays and disorders," the Army Court of Criminal Appeals said in U.S. v. Mark A. Arab (2001).
Consensual violence would only undermine this societal interest in public safety.
As the Manual for Courts-Martial notes, an "assault" is an attempt or offer with unlawful force or violence to do bodily harm to another, whether or not the attempt or offer is consummated. And the actual use of unlawful force or violence can result in, depending on the extent of the injuries, an assault consummated by a battery or aggravated assault.
Also, for the use of unlawful force or violence to qualify as an assault, "[i]t must be done without legal justification or excuse and without the lawful consent of the person affected." [Emphasis added.]
In U.S. v. Alvin C. Wilhelm (1993), the accused, an Air Force senior airman, had been convicted at general court-martial of multiple specifications of assault and battery upon his wife.
On appeal, Wilhelm argued that "when people voluntarily enter into an affray they consent to putting their persons at risk."
The Air Force Court of Military Review noted that his interpretation omitted a "key word" from the military definition of battery, namely the "lawful" that precedes "consent."
"The inclusion of the word, 'lawful' ... is not mere surplusage, for any consent implied in mutual combat is void as a matter of law," the court said.
Certain exceptions are made for legally recognized sporting events, such as boxing or wrestling matches.
Usually, a nonprovoking service member who is attacked can use a degree of force necessary to protect himself or herself — widely known as self-defense.
But "parties to a mutual combat are wrongdoers, and the law of self-defense cannot be invoked by either, so long as he continues in the combat," the court noted in the Wilhelm case.
Troops who were in a fight and later charged with assault and battery should immediately consult with an experienced military law attorney as the standards and application of lawful self-defense is quite nuanced and fact-intensive. Depending on the circumstances, an attorney could help show the combat was not mutual and raise the issue of self-defense.
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.
