Mutual Combat Defined
Mutual Combat is a term used informally by many to describe an altercation between two consenting individuals. Historically, mutual combat is a term used in military discipline and war to refer to a conflict that is agreed upon by both parties. Now, it is also a term used by courts to describe a physical altercation that is agreed to by both participants subsequent to the dispute over the matter. The term is most commonly used in the context of a bar-fight or a fight that breaks out in an informal setting.
The main factor that has to be construed in analyzing mutual combat is the element of mutual consent. Essentially , both sides have to agree to the fight, and, in some cases, initiate the initial altercation. Consent is often construed simply by the occurrence of the fight well after the verbal disagreement over the matter. When mutual combat is discussed in the context of criminal law, it is often termed mutual combat defense, meaning that the term is brought before the court as a defense for a physical altercation.
Mutual Combat Laws across the US
State laws across the United States are fairly consistent in their treatment of mutual combat. Some laws even refer to mutual consent. However, these rules are not uniform. In other words, just because mutual combat is legal to some extent in one state does not mean that it’s legal in a neighboring state. In addition, while some states prescribe mutual combat as an affirmative defense, such a defense is not available in other states. Sometimes, a victim or police officer will ask the question, "Do you want to press charges?" after a fight has broken out and the police have arrived on the scene. Such a question, though entirely legitimate, can sometimes result in heightened emotions for the parties involved. In certain jurisdictions, the consent of both parties is an affirmative defense in response to a charge of assault and battery, provided that the participants did not go beyond the scope of the agreement. Where the mutual combat is lawful, criminal charges will not be available.
State statutes governing mutual combat vary and address issues such as whether the parties’ agreement was a valid one and whether certain requirements have been satisfied. Five states have codified their common law rules regarding mutual combat. Under California Penal Code section 198, mutual combat is not an affirmative defense unless certain circumstances are present and "the combat ensued in a manner clearly indicating that the combatants were not unlawfully fighting." An affirmative defense also exists under Colorado Rev. Stat. Section 18-1-703 for mutual combat that was not unlawful, provided that another person did not participate in the right and injuries inflicted by the participants have only caused slight harm. Article 7, section 6 of the Delaware Constitution essentially establishes the legality of mutual combat as a defense, using similar language as Nevada’s statute discussed below. Maine Rev. Stat. tit. 17-A §108, Maine’s mutual combat statute, does not expressly provide for mutual combat as an affirmative defense. North Carolina Gen. Stat. 14-34, which refers to mutual consent instead of mutual combat and does not expressly provide for mutual combat as an affirmative defense, nevertheless addresses the issue of mutual consent in light of an affirmative defense to assault and battery charges.
Although it is outside the scope of this article to determine when the use of deadly force in self-defense is justified, regardless of mutual combat laws, the following states share similar language with regard to justifiable homicide: If a person is attacked, and in order to save his life, the law imposes on him the duty of retreating, but if he is attacked in his own home, no duty to retreat exists, and the homicide of the attacker may be justifiable even though the person has the opportunity to retreat and save himself. See Alaska Stat. 11.81.335(e) (expressly referencing mutual combat); Ariz. Rev. Stat. 13-404(C) (focusing on certain justifiable uses of force and self-defense); Conn. Gen. Stat. section 53a-19(g) (providing for immunity from prosecution for certain justifiable uses of force in self-defense); Del. Code 11 § 461(f) (expressly referencing mutual combat); Nev. Rev. Stat. 200.130(3) (providing for immunity from criminal or civil actions for certain justifiable uses of force in self-defense).
Legalities and Consequences
The legality of mutual combat can vary significantly from state to state. For example, in 2015 the Georgia Court of Appeals ruled that mutual combat was not a defense to assault and battery charges. On the other hand, in California, mutual combat is often seen as a valid defense, provided that both individuals were willing participants in the altercation. Experts in that state argue that self-defense laws should extend beyond situations where a person is being attacked out of the blue, justifying preventive action. Instead, California allows mutual combatants to claim that they acted in self-defense if they can prove the altercation started with both sides agreeing to engage in the fight. Mutual combat may still be viewed as fighting despite a provocative act by one party.
Most states also generally allow self-defense laws as an extension of mutual combat. In some states, mutual combat protects individuals from being charged with crimes if they were only protecting themselves from attack by an aggressor. However, in order to use self-defense laws, there are requirements that have to be met. One requirement is that a reasonable person would not have thought the defensive actions would escalate into another attack, injury, or death. Another limitation is that self-defense actions have to be considered proportionate to the perceived threat. Any method or weapon that is more severe than necessary to counter the threat would not be classified as self-defense.
Famous Cases of Mutual Combat
Numerous court cases have referenced mutual combat over the years, including (but not limited to):
Eagles Nest v. David and Barbara Rose
David Rose could certainly hold his own in a bar fight, but that didn’t help him when it came to a court of law. In a civil lawsuit filed against David Rose by Eagles Nest on July 5, 2007, the Tennessee Court of Appeals confirmed the right of a business to revoke the license of a patron to be in their establishment – a right that extends even to someone who may not be trespassing.
David Rose was issued a trespass notice at Eagles Nest, a bar in Lenoir City, Tennessee for engaging in mutual combat with Matt Lee, an acquaintance. The citation ordered Mr. Rose to stay off the premises for six months. Unsatisfied with the citation, Mr. Rose sued the establishment for $50,000 in lost tips, wages and "slander" resulting from damage to his reputation due to eviction. The case, Eagles Nest v. David and Barbara Rose went all the way to the Tennessee Court of Appeals.
The Court held that because Mr. Rose had been granted notice to vacate the premises and he left, he was no longer welcome on Eagles Nest property. The establishment was well within its right to revoke Mr. Rose’s access to the bar and commenced with a lawsuit against him for their financial losses as a result of this eviction.
Davis v. United States
In 2005 , Timothy Davis and a friend found themselves in the parking lot of a nightclub in Washington, D.C. after a night out filled with fun and alcohol. Fearing that they were being followed through the parking garage by an unknown group of men, the pair took action with the knowledge of a nearby police surveillance camera, extorting the situation as a simple act of self-defense. But that’s not how the law interpreted it.
The incident began like many bar fights, with light pushing and shoving that escalated into a physical altercation. When they were pushed out of the bar, the front doors automatically locked and Davis and his friend were trapped in the parking lot with a group of men, prompting the ill-fated move that would headline the front page of their local paper.
The group of men – later revealed to be undercover police – tried to leave the fight behind them, peeling out of the parking space and driving away, but were stopped by the police before they could make it to the parking garage exit. In the end, Timothy Davis and his friend were arrested by the police and charged with assault with a deadly weapon, assault on police officers and malicious destruction of property.
The Global Take on Mutual Combat
While the concept of mutual combat is unique to American law, there are a number of other countries that have similar, albeit less defined, acknowledgments of consent to fight – so, in a recent article I shared a little about the United Kingdom, Canada and Australia’s perspective on such distinction. In the UK, self-defence in the context of mutual combat is encompassed within common and statutory law. The statutory statement of defence in the context of mutual combat first appeared through the Criminal Law Act 2008 ("the Act"). Section 76(5) of the Act provides that "[t]his section applies to acts done for the purposes of self-defence or defence of another – (a) that are not intended by the defendant to cause death or serious injury, and (b) are not grossly disproportionate in circumstances as he or she perceives them." According to the statute, if a person fights the applicant and seeks to give him a bloody nose, while the applicant fights the respondent and seeks to kill him, it is possible for the applicant to use self-defence even though they each had a different subjective opinion as to the risk faced. While cotemporaneous consent does not preclude a defence of self-defence under the Act, any prior agreement to whether or not to fight, would not be taken into account by the court. In relation to offences outside the scope of mutual combat, (e.g. using a sharpened stick), self-defence would only apply if the court is satisfied that it was necessary that the applicant respond in such a manner to the impending threat. This may be possible in cases where the applicant had a reasonable belief that the retailer was using excessive force. In Canada, the implied defence of consent to touch applied in instances of consensual fights where two combatants step outside the bounds of acceptable conduct. In the case of R v Cey, the Supreme Court of Canada held that, in instances of consensual street fights, liability can be avoided by arguing a defence of consent. Where the consent is to mutual combat the defence would fail only if the accused’s actions went beyond the consent allowed by law. However, in order for mutual combat to be lawful, three requirements must be satisfied: Similarly to the position of the United Kingdom, in Australian law, whilst provocation or frustrated provocation is not available as a defence in the context of mutual combat, consent will be a defence to a charge of assault. In intimate contexts, consent must be given for sexual contact to occur.
Conclusion on Mutual Combat
The complex interplay between mutual combat laws, their interpretation by courts, and evolving societal standards, suggest that the future of mutual combat will be a subject of ongoing legal and political debate. While some jurisdictions continue to codify or recognize mutual combat as a defense, courts may be less inclined to view the issue as an absolute bar to prosecution. A growing emphasis on community safety and public health suggests that legal norms may increasingly resist the idea that consensual harm may serve as a legitimate basis for avoiding criminal liability.
It is possible that we may see legislative proposals aimed at limiting the circumstances in which mutual combat may be used as a defense. Such reforms may serve as a recognition of the reality that most of us do not live in simple duels of honor , but rather in subtler and more complicated social worlds. As the nation continues to debate the extent to which states should protect consensual harm like mutual combat, we may see greater variation within the laws of individual jurisdictions. Public attitudes may thus shape the future of mutual combat laws, even in the absence of legislative change.
As debates about mutual combat law and criminal law broadly continue, we may also continue to see a push to expand societal understanding of mutual combat and its implications. By informing those about mutual combat law and the ways in which these issues have been defined, debated, and decided, advocates for different viewpoints may influence how lawmakers, judges, and the public as a whole think about mutual combat in our legal system. This may help to frame the nature of human violence and human conflict in a way that goes beyond simple debate over legal tests and defenses.