"Initially when they first called me about (the case) . . . I thought it was generally an accident," [the county prosecutor] said. "It was clear from the tape that he planned to hurt the player from Coshocton, and you saw him look around to see where the officials were."

During a dead ball, T.J. Helbling was flagrantly fouled by Malloy, taking an elbow to the mouth and damaging four of his teeth badly enough that he won't be able to finish the season. Helbling underwent oral surgery to straighten his lower teeth, which were jammed backward at a sharp angle, and to set his jaw which was broken in two places.

* * *

After consultation with the victim's family, Malloy was sentenced to 180 days in jail. He will serve two days in jail and the remaining 178 days are suspended. He has to pay restitution—Helbling's medical bills—and be a law-abiding citizen for a year.

The Legal Reader acknowledges that the foul in question "sounds pretty nasty," but seems to have some lingering doubts about the propriety of a criminal prosecution. I'm not sure why this is the case, given the facts and the law involved.

The Times Recorder reports that the assailant was originally charged with Felonious Assault, a felony of the second degree, under Ohio Rev. Code § 2903.11(A)(1). The charge was amended to simple Assault, a misdemeanor of the first degree, under Ohio Rev. Code § 2903.13(A). The teen pled guilty to the latter, which requires that "[n]o person shall knowingly cause or attempt to cause physical harm to another."

The only real difference between the two charges is that Felonious Assault requires "serious physical harm," as opposed to mere "physical harm." The two terms of art are defined by yet another statute. See Ohio Rev. Code § 2901.01(A). "'Physical harm to persons' means any injury, illness, or other physiological impairment, regardles of its gravity or duration." Id. at 2901.01(A)(3). "'Serious physical harm to persons'" means, in relevant part, "[a]ny . . . condition of such gravity as would normally require hospitalization," or "[a]ny physical harm" that entails "some temporary, serious disfigurement" or "acute pain of such duration as to result in substantial suffering." Id. at 2901.01(A)(5)(a), (d)-(e).

Accordingly, a charge of simple Assault for the behavior in question is rather uncontroversial. Indeed, it seems that Felonious Assault is not really a stretch under the circumstances. The Times Recorder article does not specify why a plea to the lesser charge was proferred or why the state accepted a no contest plea rather than demanding an unambiguous plea of guilty.

Perhaps, what gives The Legal Reader pause is the notion of being sentenced to jailtime for a sports-related infraction. It is a common belief that participation in sporting activities entails certain risks and that those who choose to participate assume such risks, that they consent to contact that would not otherwise be consensual in other settings. This belief is actually well-founded—in part.

Discussion of assumption of risk, as this principle is known in the common law, generally arises in tort cases for battery, which is the civil law tort equivalent of criminal assault. In some states, e.g., Texas, the elements for civil battery and criminal assault are identical. In Ohio, the two appear to be substantially similar. See Guerrero v. C.H.P. Inc., No. 78484, 2001 WL 931640, at *4 (Ohio Ct. App. Aug. 16, 2001) (unpublished opinion) ("The essential elements of battery are: the tortfeasor intends to cause a harmful or offensive contact, and in fact causes a harmful or offensive contact which damages the plaintiff."). Hence, it is instructive to consider tort suits that arise in this context as well.

Ohio has a some very interesting tort cases that have arisen in this very context. In Marchetti v. Kalish, the Supreme Court of Ohio addressed the intersection of tort and sports in a case that revolved around injuries sustained in a neighborhood game of a modified version of "Kick the Can." 559 N.E.2d 699, 699 (Ohio 1990). (An appendix to the case actually contains the "traditional rules of 'Kick the Can,' as stipulated by the parties. Id. at 699 n.1, 704-05.) The state's high court nicely summarized American jurisprudence regarding sports-related injuries:

However, courts traditionally have not been inclined to allow a cause of action for injuries received during participation in such activities. In Kuehner v. Green (Fla.1983), 436 So.2d 78, 81, Justice Boyd, concurring specially, noted that "[h]istorically, the courts have been reluctant to allow persons to recover money damages for injuries received while participating in a sport, especially a contact sport, unless there was a deliberate attempt to injure. In denying recovery, the courts have often explained that a person who participates in a sport assumes the risk that he or she may be injured. Only recently have some courts allowed a sport participant to recover damages for injuries resulting from unintentional but reckless misconduct. See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 188 (1979); Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975). These courts reasoned that a sport participant does not assume the risk of injuries resulting from bodily contact uncustomary to or prohibited by the rules of the particular sport."

Likewise, while allowing a recovery for a sports injury based on intentional tort, a Michigan court has stated that "[p]articipation in a game involves a manifestation of consent to those bodily contacts which are permitted by the rules of the game. Restatement of Torts, 2d, § 50, comment b. However, there is a general agreement that an intentional act causing injury, which goes beyond what is ordinarily permissible, is an assault and battery for which recovery may be had." Overall v. Kadella (1984), 138 Mich.App. 351, 361 N.W.2d 352, 355. Thus, courts generally allow a cause of action for injuries sustained in recreational or sports activities only under reckless or intentional tort theories.

* * *

. . . Thus, we join the weight of authority set forth above and require that before a party may proceed with a cause of action involving injury resulting from a recreational or sports activity, reckless or intentional conduct must exist. We hold that where individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover for any injury unless it can be shown that the other participant's actions were either "reckless" or "intentional" . . . .

Id. at 700-01, 703-04.

These same principles apply to any recreational or sporting activity, whether it is "organized, unorganized, supervised or unsupervised." Id. at 702. The "expectations of the participants" determine whether an activity is recreational and thus subject to these special rules regarding consent and bodily contact. Konrad v. Morant, 627 N.E.2d 1007, 1009 (Ohio Ct. App. 1993). In a case handed down the very same day as Marchetti, Ohio's high court applied these principles to a suit that centered on injuries sustained in a game of golf. Thompson v. McNeill, 559 N.E.2d 705, 706 (Ohio 1990). In Thompson, the court elaborated on the principles announced in Marchetti:

It is necessary to fashion a special rule for tort liability between participants in a sporting event because playing fields, golf courses, and boxing rings are places in which behavior that would give rise to tort liability under ordinary circumstances is accepted and indeed encouraged. Paradoxically, however, amateur and professional athletes are expected to confine their behavior to that which is allowed by the rules of the game.

* * *

. . . [T]he spectator or participant must accept from a participant conduct associated with that sport. Thus a player who injures another player in the course of a sporting event by conduct that is a foreseeable, customary part of the sport cannot be held liable for negligence because no duty is owed to protect the victim from that conduct. . . .

Id. at 707.

As the rules of any given game may vary, the duties owed to one's fellow players vary. For example, what might not constitute the tort of battery in the context of a contact sport like hockey might very well be a tort in tennis. Id. at 708.

I'm not sure whether soccer ought to be classified as a contact sport. It is less physical than hockey or football, but nonetheless seems to feature a high potential for bodily contact amongst players vying for the ball. Whatever the case, a premeditated elbow to the face of another player of sufficient force to cause injuries requiring surgery is well beyond the rules and customs of the game. Conduct this gratuitous seems a likely candidate for criminal charges.

No doubt, there are closer cases to be had. Last evening, I attended a "farm league" hockey game. While penalized by the rules of the sport, fighting is customarily a part of hockey. Hockey fans delight in extracurricular combat. Indeed, such conduct is often encouraged and celebrated. For example, when fights broke out at the game that I attended, the video scoreboard would feature a graphic of a ringing bell akin to those used in boxing matches and the theme song to Rocky was played.

Obviously the customs of hockey allow for a good deal more than might be permitted in soccer. But even in hockey, I am not sure that the sort of behavior in the Ohio soccer case might not lead to liability in tort or in criminal law. After all, the assailant in question ensured that the game's officials were not looking and then proceeded to intentionally strike his victim with sufficient force to end his season. I think that the instant defendant should count himself lucky for having to serve a mere two days of his 180-day sentence.

Mark Kleiman asks:

Here's the puzzle: with the rush-hour commute from the High Desert to Los Angeles now clocking in at two hours each way, and the state of California tottering toward bankrupcy, why hasn't the idea of congestion prices on the freeways at least risen to the status of a political loser?

The appeal of congestion taxes is that they're welfare increasing to drivers as a whole-- you put a driver to a choice between paying some money or keeping his old habits, so only the drivers who don't value their habits too highly have to change their lives. Then you give all the money back, but distribute it broadly to all drivers, so that as a whole the drivers haven't actually lost any money-- it's just that the drivers who congest roads are effectively paying the drivers who don't for the inconvenience.

But this scheme is only popular with the drivers if they get their tax money back. If they don't, then they all rightly complain, "yeah, our roads are less crowded, but we're also all a lot poorer."

Now, money in the state treasury doesn't go nowhere-- government isn't a black hole-- but it also doesn't go directly back to the people who paid it in there. It goes to finance all sorts of doings in the state.

This is, in essence, like saying to all commuters "hey, why don't you guys all subsidize the budget problem? Oh, but as a consolation for your lost money, we'll solve your congestion problem." Now, congestion is problematic, but so is losing money, as a group. Commuters are probably right to oppose congestion taxes, so long as there's any serious risk of the money being used to "fix the state's budget problems." [Note: There is some chance that commuters could still benefit from a Kleiman-style commuter tax, if the elasticities of money and congestion are of the proper magnitudes.]

Kleiman references London, which is particularly interesting because that's what we're studying right now in microeconomics. The question we were asked this evening was "If congestion charges are such a good idea, why don't we see more of them?" The answer seems to be, hands down, redistribution. [London's congestion tax is made more politically feasible for two reasons-- one, the fact that a lot of it is paid by folks who don't live in London, and therefore don't get a vote, and two, the general belief (true or not) that money collected from the congestion tax goes back to subsidzing commuters either in fuel-tax reductions or investments in the Underground.]

In other words, yeah, traffic jams are a problem, but so is letting the government take money from a small group (commuters) and spread that money out among everybody. If somebody can figure out a realistic way to ensure that commuter taxes will go back to commuters (by increased road subsidies, direct payment, etc.), the idea just might get elevated to "political loser" after all.

[Commuters are the group I've focused on here because they're the group who get the benefits of reduced commuting congestion. You could try to sell the plan among non-commuting Californians by saying "Hey, I've got this great idea. We can tell commuters we'll solve their congestion problem, but rather than giving the tax money back just to the commuters, we'll smuggle it into the budget." But if you got caught saying that on tape . . .]

Ampersand asks a pair of related questions about pornography, springing off of this post by guest Crescatter Jim Leitzel (now of Vice Squad):

Censorship of porn sites: Why should we care?...

(I)s there any evidence to support the theory that censorship of extreme rape porn will inevitably lead to the censorship of soft porn? After all, child pornography has been aggressively censored for decades, without any apparent "slippery slope" effect completely destroying our other free speech rights.

I'll ponder the "slippery slope" argument first. Given that our tolerance for pornography has probably been going, in general, up rather than down, it may be hard to pinpoint a "slippery slope" down which "good porn" is slipping. Of course, free speech zealots will point out that even child pornography bans haven't been entirely devoid of slippery slopes.

While the Free Speech Coalition has won the first round of cases on the issue of banning fake child pornography (that is, computer generated pictures that look like child pornography, but didn't actually require child abuse to make), the issue is only a Thomas-vote-switch away.

How slippery is the slope? I don't know. Unfortunately, defenses of truly unpopular speech usually have to be from the "next time they're coming for you" school of rhetoric, rather than arguing that there is simply inherent value in permitting free expression, or even that the speech at issue makes some people very happy. To quote Tom Lehrer:

I do have a cause though. It is obscenity. I'm for it. Unfortunately the civil liberties types who are fighting this issue have to fight it owing to the nature of the laws as a matter of freedom of speech and stifling of free expression and so on but we no what's really involved: dirty books are fun. That's all there is to it. But you can't get up in a court and say that I suppose. It's simply a matter of freedom of pleasure, a right which is not guaranteed by the Constitution unfortunately.

BeldarBlog has now eliminated comments. I note this with particular irony because Beldar has, in the past, been a fairly harsh critic of my anti-comments Jihad.

Aww . . .

Does anybody know if the fashion for how to wear one's necktie has changed dramatically in the past 60 years? I ask because I recently watched a couple of Humphrey Bogart movies (The Big Sleep and Key Largo) and everybody was wearing their tie much shorter than most people do now-- the tip of the tie was probably two inches or so above the belt buckle, maybe more. At first I thought it was a way of representing the slovenly bad guys, but then even Bogart himself was doing it. Seems to me that most men now prefer their tie tip to just barely touch the top of their belt buckle. Is this a change? If so, when did it happen?

It's said that it's John F. Kennedy's fault that men now go around sticking their hands in their suit-jacket pockets. Is this his fault too?

UPDATE:

A reader emails:

The higher neckties are a bit of an old-style phenomenon, and mostly went along w/ three-piece suits (where it doesn't matter).

Also, Bogart and Co, like me, have a tendency to wear Windsor knots in their ties. (This makes the tie shorter.) Modern habit is mostly four-in-hand.

At least, that's what I was told by a couple of suitmakers... I couldn't cite it like the Clerk. :)

Oxblog's Josh Chafetz posts (and I copy in full):

YOUR DAILY WORDS OF POLITICAL WISDOM:

Nobody's talking about anybody's momma

That's Louisiana Democratic Party Chairman Mike Skinner, explaining why the rhetoric of the Louisiana gubernatorial race can't be called "negative."

The article he links to is here, but that was the highlight. Although, this story is pretty good, too:

Many point to Edwin Edwards' first race for governor in 1971, which included a minor candidate named Warren J. "Puggy" Moity, who ran an infamous Sunday morning television show devoted to political mudslinging. He harped on Edwards and called him gay. Edwards later neutralized the accusations by strolling up to Moity at a political forum and kissing him on the cheek.

Exciting day Saturday -- the runoff election and the #3 ranked LSU Tigers face Bama. Now where can I find some ESPN?

Professor Volokh,
don't leave us alone again--
with that RantingProf.

Cori Dauber has left the Volokh Conspiracy, so I can now remove the "Purer Volokh" link at the side, which Chris Lawrence has immortalised here.

Last week was devoted to defending Oberlin's sexfest. Now J.H. Huebert has investigated the school's official website and decided that he was much better off going to Grove City College.

For myself, I'm not at all sure would be the lesser of two evils-- a roommate "secretly" hoping to make me his first homosexual experience (while posting this secret on the school website), or a school whose "Intellectual inquiry remains open to the questions religion raises and affirms the answers Christianity offers."

But having a diversity of biases available for undergraduate education seems like a far better choice than having none.

I was going to discuss the lost sex scenes of Jane Austen, but being a relative newcomer to Austen fanhood, I've decided I'll leave that task instead to my sister and Austentatious (via Bookslut).

GroupLawBlog En Banc has just cut its ranks down to six. Does this represent a new streamlining, or will new appointments fill the open seats?

Keep an eye out this week for a new guest, one much more Curmudgeonly than any of our previous guests have been.

If you don't already read The Curmdugeonly Clerk's Weblog, you really should, but hopefully this week you'll find out what you've been missing.