What do you call a bar fight that doesn’t happen at a bar? This isn’t the lead-in for a joke, we’re genuinely curious. It turns out there is a term that defines those agreed-upon altercations. Whether you take it outside or are already there, a conflict that breaks out with consent is called “mutual combat.”
What is mutual combat?
Mutual combat is a term that speaks for itself. It refers to two consensual parties who engage in a fight, meaning that both people have agreed to it – there isn’t an attacker or attackee – under the presumption that it will not involve bystanders or property damage. Duhaime’s Legal Dictionary specifies that two parties “mutually fight upon equal terms” – an important distinction once the law gets involved.
This doesn’t always specify a fight to the death, but it can include it. Duhaime’s notes that, bizarrely, in the U.S. modern-day defense of the right to mutual combat has recently come to support the use of deadly weapons in mutual combat. This changes the concept of mutual combat to be a mortal combat. It has been cited as such in several court decisions.
Justice Gordon in People v. Thompson (Illinois, 2004) specifies that mutual combat is “where death results from the combat.” Justice Wolfson uses the same exact wording in People v. Jones (Illinois, 2007).
The official definition seems to be a bit fuzzy, but that’s probably because there is no official definition. . Unlike words like “fraud” and “manslaughter,” which are used to define specific crimes, mutual combat can vary. While the term is cropping up in more and more legislation and court decisions, it’s not yet been laid out in finite terms.
Mutual combat is a common law, meaning that it is based in precedent of previous cases and the decisions written by the presiding judge. (Unlike civil law, which is actually written down and codified.) It goes back to a time of duelling. A common way to settle disputes between two parties, duelling used to be a respectable way to work out disagreements. With the turn of the 18th century, the great changes that took place in Europe, altering society’s self-consciousness, duelling became outlawed and frowned upon as dated violence.
How does mutual combat work?
Today, mutual combat still works to settle arguments (although it tends to be a frowned upon way to settle a disagreement, compared to other methods such as negotiation and debate). The idea is that two parties agree to have a fight to work out their differences with no interference from third parties. A one-on-one match. The agreement is usually verbal (how often do you see two people writing down the terms and signing it before having a brawl?) and presumed to be upheld until both persons step away from the fray.
What states allow mutual combat?
It’s hard to paint the situation in black-and-white. On a national level, mutual combat is neither legal nor illegal. Each state has its own laws surrounding that interaction, if they even address it at all – which is when common law plays its part. Is it a brawl, a fistfight between two persons at a bar? Is it a duel, two persons using weapons against each other? Are these melee weapons or firearms? Is it an organized contest: two persons fighting each other in a sport setting? All these nuances of the unofficial term make legislation – and thus determining legality – difficult. No one state specifically says two parties are allowed to engage in mutual combat.
If it is brought to court, judges and juries look to past cases of mutual combat while also considering the facts of their specific case: were there witnesses? did the two parties have any weapons? was one party killed in the act? All these nuances can determine whether or not the mutual combat that took place was legal or illegal in that state.
The first place in American to specifically outlaw duelling was our capital. The death of a senator in a duel in 1838 prompted a bill to be passed “to prohibit the giving or accepting, within the District of Columbia, of a challenge to fight a duel, and for the punishment thereof.” Said punishment was being convicted of a felony and being sentenced to up to ten years hard labor. If an unmet challenger called out their unwilling opponent of being a coward, they could be given up to three years hard labor. Suffice to say duelling with pistols was taken very seriously.
To this day, many states address duelling in their constitutions only regarding the ability to hold office as an elected official. West Virginia and Iowa’s constitutions specifically outlaw duelling from potential or present office holders. Some states like Mississippi and South Dakota used to prohibit duelling in their Bill of Rights but repealed the prohibition of it, not specifically allowing duels to take place now but also not saying that it’s illegal. Today, duelling is outright illegal (not just for elected officials) in Massachusetts, Nevada, Oklahoma, and South Carolina.
In Connecticut, the Criminal Jury Instructions given to members of a jury as guidance mentions “an illegal combat by agreement,” implying the illegality of mutual combat in the eyes of the law of Connecticut. Said illegality is not mentioned in the state’s Penal Code, however. Meanwhile in Pennsylvania, it’s spelled outright: “a person is guilty of assault […] in a fight or scuffle entered into by mutual consent, in which case it is a misdemeanor of the third degree.” Mutual combat is also illegal in Idaho, Rhode Island, New Jersey, and Tennessee, varying from a misdemeanor for disturbing the peace to a felony.
In some cases, mutual combat may not be prosecuted in criminal court, but parties could be sued in civil court and forced to pay damages. Essentially even if it’s not illegal, it could have legal ramifications.
Many states that reference mutual combat in their laws tie it in with the concept of defense. Utah’s Criminal Code has a section (76-5-104) on “Consensual altercation,” in which it is stated that being a party of mutual combat is not a defense if prosecuted and thus one can be charged with assault or homocide. In North Dakota’s Penal Code, it states that a person could use consent as a defense for assault, implying that said person would not be penalized for mutual combat or charged with assault. Similarly, Alaska, Arizona, Arkansas, Colorado, Maine, and New York mention “combat by agreement” in their Penal Codes. In these instances, the code specifies that a person can not claim self defense if “it is the product of a combat by agreement not specifically authorized by law.” The question of mutual combat’s relationship with self defense is a bigger topic to tackle, but here it at least proves that there is a(n) (il)legality surrounding mutual combat. “Authorized by law” implies that some mutual combats are legal, which in turn implies that some are not.
Mutual combat vs self defense
As we’ve mentioned, mutual combat is quasi-synonymous with duelling. It’s two consenting parties who engage in a fight. Self defense, as viewed in a legal setting, implies that one party (s/he who acts in self defense) does not consent to fight. The two differ by intent, a defining factor which would need to be proved in court.
It is possible that what started as mutual combat can turn in to a situation of self defense. Beginning as an agreed upon challenge, if one person wishes to cease the fight and the opponent does not yield, the situation transforms into an attack during which the first person could be compelled to act in self defense. For example, if the first person calls out in an attempt to stop the fight, the unyielding opponent could be charged in court for assault. However, there has to be good proof of the first person’s attempt to stop the fight. Otherwise, a jury could decide that the whole situation falls in the category of mutual combat and the first person would not make a successful self defense claim. This is actually written into California’s Penal Code, which states that homicide as a result from mutual combat is justifiable only if the assailant “must really and in good faith have endeavoured to decline any further struggle before the homicide was committed.”
The concept is pretty convoluted, as mutual combat and self defense weave into each other very easily. There are so many factors that make each case distinct; each can have drastically different results. Mutual combat is an especially gray area. Some states don’t use the term in their legislation, some use phrases such as “duelling” or “combat by agreement.” Regardless, any event of mutual combat that’s brought to court will not likely have a clear outcome in many states.
Sources:
https://memory.loc.gov/cgi-bin/ampage?collId=llsb&fileName=021/llsb021.db&recNum=29
http://www.wvlegislature.gov/wvcode/wv_con.cfm
https://www.sos.ms.gov/content/documents/ed_pubs/pubs/Mississippi_Constitution.pdf
http://publications.iowa.gov/135/1/history/7-7.html
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=197.&highlight=true&keyword=duel+mutual%20combat
https://caselaw.findlaw.com/ct-supreme-court/1712689.html
https://www.legis.state.pa.us/wu01/li/li/ct/htm/18/18.htm
http://www.akleg.gov/basis/statutes.asp#11.81.330
https://le.utah.gov/xcode/Title76/Chapter5/76-5-S104.html?v=C76-5-S104_1800010118000101
https://www.legis.nd.gov/cencode/t12-1c17.pdf#nameddest=12p1-17-01p1
https://legislature.maine.gov/legis/statutes/17-A/title17-Asec108.html
Theodore Lee is the editor of Caveman Circus. He strives for self-improvement in all areas of his life, except his candy consumption, where he remains a champion gummy worm enthusiast. When not writing about mindfulness or living in integrity, you can find him hiding giant bags of sour patch kids under the bed.