What is Mutual Combat?
Mutual Combat, as the name suggests, refers to an agreement between two or more individuals to commit a violent act together. This concept has its roots in dueling practices from early modern Europe, where opponents would agree to fight in order to settle a dispute, often facing potential criminal consequences thereafter. In both England and the United States, the legal system long recognized mutual combat as a valid justification for a fight that occurred outside of the context of self-defense. In fact, American courts entertained mutual combat as a formal "justification" as late as the mid-20th Century, though no longer on the grounds of protecting one’s honor. By then, most courts had abandoned mutual combat as a viable defense for homicide and other crimes. Nevertheless, despite the abolition of formal legal acknowledgment of mutual combat, judicial treatment of the concept persisted into the late 20th Century, as did street codes and self-imposed customs predicated upon it, and virulent manifestations in entertainment culture. In some sense, mutual combat still represents the public’s attempt to defend fights outside of mutual consent . While judge-made law has since caught up with modern social attitudes, legislators have lagged behind in California.
In modern-day legal parlance, mutual combat commonly describes a situation in which two or more consenting parties voluntarily engage in a physical confrontation that is not legally sanctioned by the various other justifications for use of deadly force. The law in California expressly recognizes self-defense as a legally-sanctioned justification for people who use deadly force in anticipation of a deadly force being used against them. The law also defines "mutual combat" as a special category of assault and battery that does not qualify as self-defense. In essence, mutual combat describes a consensual situation between two or more individuals to engage in a fight. In this sense, both parties’ consent is legally relevant for purposes of determining whether a given fight qualifies as a lawful justification for use of deadly force, whether in a civil or criminal court proceeding. Nonetheless, California courts recognize the policy implications and dangers that surround fighting between individuals. Like dueling in centuries past, mutual combat reflects the danger of escalating conflicts that stem from pride, emotion, and judgment.
California’s Position on Mutual Combat
Laws in California do not acknowledge mutual combat as a valid defense against criminal charges. Despite this, California courts have been reluctant to convict or punish participants in mutual combat as long as their behavior adheres to community norms for socially acceptable involvement in mutual fistfights.
Cases decided by the Ninth Circuit Court of Appeals on appeal from California examine this issue. The court decided in United States v. Jennings that a rule for mutual combat was a value judgment for the state. Therefore, it could not be applied in prosecuting actions in federal court. In Jennings, the defendants were tried for what the court characterized as simple assaults or fights involving pushing each other with their chests. The defendants claimed that the fights were consensual, but the court found no evidence for that in the record.
The court further noted in United States v. Wolf that mutual entries into fights did not necessarily evidence a voluntary consent to the fight’s continuation when one of the parties "did not fight back after taking the initial blows." Wolf concerned another case from the Ninth Circuit with a record that lacked information about the fight’s progress after the initial physical contact. Therefore, the court found that due process and equal protection did not permit the reversal of a conviction if a jury could have rationally found that the defendant did not engage in mutual combat.
California law does not have a distinct statute for mutual combat or consensual fights. Instead, the state uses the general assault statute of California Penal Code Section 240. Assault can be committed by the use of force against another person, and California law does not recognize consent as a defense to prosecution under this statute. Therefore, consent is an element of a mutual combat charge only in terms of whether the people involved meant to engage in assault.
Important Legal Exceptions and Caveats
Section 415 provides for the possible imposition of criminal liability upon a person for the mutual commission of an assault. Under California Penal Code Section 415, section (1), it is a misdemeanor for any "person who unlawfully and maliciously does any of the following" in a public place which "disturbs the public peace or alarm the public: (1) [m]aliciously and willfully disturbing the peace or quiet of any neighborhood or of any person by loud noise." This statute is most frequently used to prosecute acts of mutual combat, e.g., simple physical altercations. Section 415 allows offense conduct usually outside the jurisdiction of criminal law to be prosecuted by holding persons accountable for the consequences of their voluntary act. Section 415 establishes a defense to prosecution under the above section if the defendant "was giving a reasonable warning or needed instruction to prohibit the unlawful conduct." In other words, if the parties were engaged in mutual combat but one participant specifically asked for assistance, that individual may avoid criminal prosecution under section 415. Self-defense is the most commonly exercised defense to criminal prosecution for a mutual combat assault charge. Total defenses such as intoxication are generally ineffective against an assault or battery charge because they merely excuse the occurrence but not the behavior. Another total defense arises when two people voluntarily agree to meet at a neutral location to fight using bare knuckles. See People v. Montoya, 166 Cal.App.3d 1164, 1169 (1985) (the defendant has no duty to intercede if he is not legally required to do so for example if the fight voluntarily occurs on a neutral field). In People v. Montoya, the defendant was charged with simple assault after he and the victim each challenged the other to a fight. Each participant agreed that the fight would be voluntary and on a neutral field. When both participants began to throw punches, one of the defendant’s blows resulted in the victim’s injury. The court held the defendant was not guilty of the crime because self-defense was not required because "the mutual combat doctrine calls forth the ‘equal fighting rule’ to protect the right of citizens to freely engage in voluntary consensual fights without the supervision of the state." The California Supreme Court decision in People v. Wetsel, 126 P.2d 535 (1942) involved in a similar voluntary encounter between the defendant and victim. The parties agreed to fight on Sunday morning in a community field with bare knuckles. Upon arrival, the defendant told the victim he could use a stick if he wanted to. The victim did not respond and they began fighting. The defendant said he did not hit the victim with the stick and the judge concluded that the evidence was not sufficient to prove otherwise. The Supreme Court affirmed the case and held there was no mutual consent to use the stick and the court adopted the "no duty to retreat rule," however, the voluntary combat doctrine recognized in Montoya was absent. The defendant’s burden of proof is "by a preponderance of the evidence," meaning more likely than not. See People v. Hood (1969) 1 Cal.3d 444, 454. In People v. Aguilar, 38 Cal.3d 580 (1985), the California Supreme Court held that "an aider or abettor in a mutual combat-type assault may not, as a matter of law, be convicted of being an accessory and an accomplice to assault with a deadly weapon." Even if the aider or abettor intended to assist his or her codefendant in committing the crime, the wrongdoer is only guilty of simple assault and not an aggravated assault. The defendant’s intent is considered to control whether murder or manslaughter is excused as incompatible, illogical, and unnatural and impermissible as a matter of law. Aguilar further held that "there can be no aider or abettor in an assault-type "fight between two or more parties whose mutual combat is consented to by all the combatants." Id. In order to be guilty of a greater offense one must commit the assault with malice, which requires a more culpable mental state than that required for the simple assault. The defendant did not possess the degree of culpability necessary for a conviction of the greater offense. In Montoya, the defendant challenged the constitutionality of the statute under which he was charged, section 415, subdivision (2), contending it is void for vagueness. The court of appeal disagreed and explained that a statute is not void for voidness unless it is "unintelligible, incomprehensible to a person of ordinary intelligence, or subject to arbitrary and erratic application and enforcement." See People v. Leader, 160 Cal.App.3d 965, 970 (1984).
Mutual Combat and Self-Defense
Although both require that the defendant have acted willfully and caused injury to the victim, mutual combat differs from self-defense in that it does not require a lack of a reasonable belief in imminent danger. Penal Code 197(a) provides the following: Homicide is also excusable when (1) the killing was the unlawful act of another which accomplished purpose, rather than the mere thoughts or inclination of the slayer. [†] When no considerable interval of time occurs, within which the actor might have chosen to kill or to be killed, or to do some other act which would not have inflicted the injury done, the latter or doing nothing, is conslusive evidence that the killing was done, in point of law, voluntarily and involuntarily [ ]; (2) the slayer was a mere instrument, in the hands of persons whose command the slayer was bound in law and duty to obey [ ]; (3) the killing was to save such commandors from another danger, and no considerable interval of time occurs, within which the actor might choose to kill or be killed, or do some other act which would not have inflicted the injury done [ ]; (4) the killing was to aid the commander who, if free to choose, would have chosen as the slayer did, and no considerable interval of time occurs, within which the actor might have chosen to kill or be killed, or do some other act which would not have inflicted the injury done. Mutual Combat, by definition, requires that defendant could have chosen not to engage in the assault or battery (at least at that particular time and chances are, he still would have injured the other party even after his choices were considerably narrowed). However, self-defense has no such requirement; in fact, it is the opposite. Self-defense assumes that the assault/battery victim created a reasonable belief in the defendant that he was going to be seriously injured. Therefore, in a mutual combat situation, self-defense can never apply because both parties are willing participants.
Penalties for a Mutual Combat in California
The consequences under California law for engaging in mutual combat depend on the exact nature of the altercation and injuries involved. During a mutual combat altercation, if "simple" battery is proven, the at-fault party will be guilty of a misdemeanor. If the one at fault becomes involved in an altercation after mutual consent to fight, he or she shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding six months, or by both.
However, if the mutual combat fight results in physical injury but none so serious as that which would cause a person to become comatose, the at-fault party may be convicted of felony battery and imprisoned in the state prison for 2 , 3, or 4 years.
And if the mutual fight results in the transformation from "simple" battery to "aggravated" felony battery resulting in serious bodily injury, the at-fault party may be found guilty of a felony and sentenced to serve between 2 to 4 years incarcerated in state prison. Serious bodily injury is defined as injury that causes a serious impairment of physical condition or serious or protracted disfigurement.
Multple injuries during a single altercation fall within the scope of "serious bodily injury." For instance, in California, a person who suffers a stab wound and a laceration to his face during an altercation has sustained serious bodily injury.
Previous Cases and Decisional Laws
The legal precedents and cases in California regarding mutual combat are sparse. After Allis v. Young (1903), California justified mutual combat under section 192 of the penal code, which was in effect until 1953. The section stated that "when a homicide is perpetrated by means of a fistfight, or any other mode of committing the same, in pursuance of prior mutual intention, express or implied, between the persons thus killing as principal offenders, the homicide is manslaughter."
In the Allis case, the defendant shot and killed the victim outside the ring after being beaten up in the ring. Allis had reportedly attempted to strike a fatal blow before the match began, but he was not charged with murder, so the court did not seem to consider that fact. In other words, it seemed that mutual combat could still be agreed-upon even if the parties did not enter the agreement in a fair manner.
How mutual combat now works in California is much different from how it is expressed in the past. Today, it seems that mutual combat is treated more as an affirmative defense in murder cases than a form of manslaughter. After a series of cases including People v. Thunder (2007) and People v. Flores (2017), the only time a mutual combat defense can be successfully used is if the defendant and the victim consented to the fight, and the defendant wasn’t the one who instigated the fight. This is, of course, excluding cases of police brutality and other rare cases of consensual violence.
Legal Professionals to Discuss Mutual Combat
Understanding the Legality of Mutual Combat in California requires the professional services of competent legal professionals. As such, there is a significant need to consult an experienced and knowledgeable attorney, who can review the facts and specifics of the circumstances. Surely, a skilled and knowledgeable lawyer will be able to assist with accusations involving mutual combat. This may include representation in both criminal and civil lawsuits.
In the context of a civil lawsuit, allegations and accusations for mutual combat can vary from an intentional tort to claims for breach of contract . In either case, one’s first step to address these claims should include seeking the services of a skilled legal professional, who will assist with attempts to mitigate or eliminate the claims, or defend against them, as appropriate for your case.
Criminal charges and accusations involving mutual combat are also serious matters, offenses that can be charged via misdemeanor or felony charges. Depending upon the particulars of the case, specific criminal offenses may be alleged involving defenses ranging from self-defense to mutual consent and beyond. It is recommended that those accused of engaging in mutual combat contact a skilled criminal defense attorney, preferably one who has experience with mutual combat cases.