For very good campaigning reasons many feminists argue that ‘rape is rape’. Despite being a supporter of feminism, I cannot, as a criminologist, accept that any crime is exactly the same as any other crime. Moreover, I understand, and am uncomfortable with, arguments like MacKinnon’s (Feminism Unmodified ) that under the patriarchy all heterosex is non-consensual. Here I want to illustrate differences in crimes and attitudes to them through a discussion of assault by men on other men; mostly in sport.
The link is the tricky one of consent, where sports law texts find themselves quoting the Spanner case (R v Brown) which involved sado-maschistic practices. That case necessarily has much discussion of boxing and fights in the street in seeking to discuss consent before finding against the men. Reflecting on the case Carol Smart compared consent in rape and homosexual acts noting that women’s ‘no’ is taken for ‘yes’ and homosexual men’s ‘yes’ for ‘no’.
But to sporting consent. This post is inspired by the recent case of Ben Flowers and a reminder from Christopher Matthews of the violence in Ice Hockey which reminded me of the violence of professional wrestling which Corteen and Corteen cover. I rely on Matt Rogers for the facts and some of the law and can recommend his extensive analysis of ‘implied sporting consent’.
Flowers received a six month ban from Rugby League Football (RFL) at the hands of the its match-review panel. It represents potentially missing 13 games and is the most severe option open to the panel. Interestingly the Sky sport website offers a feedback poll on the question.
This is how matters stood on 3 November 2014.
More interestingly the question might have been should his actions have been subject to police action - perhaps, there and then. It would seem that Greater Manchester Police propose not to disturb the RFL’s jurisdiction but are investigating threats of summary informal justice on social media against Flowers.
As a one-time Rugby Union player, and more occasional informal soccer player, and largely TV viewer I’m aware of the cultures of such sports. I believe I’ve received more violence than given in my sporting career but make no claims to sainthood. The odd kick in the face is the price of entry for an open water swim triathlon. I’ve received some and must have unintentionally given some.
We might construct a continuum of consensual violence for different sports with Ice Hockey and Professional Wrestling at one end where illegal moves - often punches - are expected and tennis or golf at the other end. Indeed the crowd would be disappointed if violence did not occur at Ice Hockey or Pro Wrestling. In boxing structured violence is de rigur but hitting below the belt, mauling or fighting at the weigh in (think Haye v Chisora in what the BBC call a ‘brawl’) is penalised as is ‘not trying’ British Board of Boxing Control rule 3.38 (g).
The audience for boxing goes for the formal violence of the sport but may be happy to see some additional informal violence, may even participate in some (on behalf of their man). Rugby and football crowds often enjoy a little ‘handbags’ (the feminised disavowal of the violence is interesting). Ed Smith suggests that wider society has fallen out of love with boxing as we have become less tolerant of violence (an Elisian thought?). He muses on whether American football might decline in popularity because of on- and off- pitch violence. Perhaps we might ask the same of Ice Hockey and Pro Wrestling and has a distaste for cheats - the simulation of fouls etc - reduced the popularity of soccer?
The shadow of simulation (and an implicit censure of soccer?) fell over Rugby Union recently in the suggestion that recent interpretations by officials of violent incidents would lead to diving. As the Mail Online Headline has it:
Blair Gowan of London Irish is said to have punched Leicester Tiger’s Jamie Gibson in the face but received no yellow card. Leicester’s complaint to the RFU was met with the answer that the player had not gone to the floor or needed treatment and that the penalty awarded was sufficient punishment. The concern is that, knowing this rugby players will go to ground and pretend to be hurt (and here is a Samoan player attempting to do just that). Note that for Rugby Union and in the Ben Flowers’ case a punch is not a punch but in soccer it would be irrespective of effect. And on the street it would be too.
Glenn Hoddle made exactly such a point in discussing Luis Suarez’s dental incontinence. He suggested prison. Clearly biting is beyond any implied consent and is seen to be unmanly, even childish. This reminds us that in addition to the law of the land, the code of the game there are gender codes at work too.
The London Irish captain’s take on the punch was:
It’s rugby. If you pull up every incident like that and make a thing about it the game is going to go soft.
Soccer seems to have survived the ‘softness’ of banning hacking in 1863.
But to turn to Sport and Rape we might find MacKinnon in Ched Evans’s corner when she notes:
Since rape is difficult to talk about, but men need to talk about it perhaps discussion of consent in sport might be a way in. Just as a rapist may feel he was doing what any man would do so the on-pitch punch thrower may feel he too is only doing what any man might do. Indeed he may have been the victim of punches in the past, including the immediately preceding past.
I am not so naive to imagine that by changing the way we talk about things will change matters but perhaps the sports authorities and media might use terms like victim and offender in these circumstances. Should sport point out to players explicitly the issue of consent before each match?
Stepping on to the pitch does not mean you consent to being punched. Stepping out does not mean you consent to rape and harassment - see Shoshana Roberts.
