the harm caused by the act must not be disproportionate to the harm avoided; 4. the accused must entertain a good-faith belief that his act was necessary to prevent greater harm; 5. such belief must be objectively reasonable under all the circumstances; and 6. the accused must not have substantially contributed to the creation of the emergency. I. State v. Shelley 929 P.2d 489 (Wash. App. 1997) II. Facts of the Case: A. On March 31, 1993, Jason Shelley and Mario Gonzalez played “pickup” basketball on opposing teams at the University of Washington Intramural Activities Building (the IMA). B. During the course of three games, Gonzalez fouled Shelley several times. Gonzalez had a reputation for playing overly aggressive defense at the IMA. C. Toward the end of the evening, after trying to hit the ball away from Shelley, he scratched Shelley’s face and drew blood. After getting scratched, Shelley briefly left the game and then returned. D. Shelley and Gonzalez have differing versions of what occurred after Shelley returned to the game. According to Gonzalez, while he was waiting for play in the game to return to Gonzalez’s side of the court, Shelley suddenly hit him. Gonzalez did not see Shelley punch him. E. According to Shelley’s version of events, when Shelley rejoined the game, he was running down the court and he saw Gonzalez make “a move towards me as if he was maybe going to prevent me from getting the ball.” The move was with his hand up “across my vision.” Angry, he “just reacted” and swung. He said he hit him because he was afraid of being hurt, like the previous scratch. He testified that Gonzalez continually beat him up during the game by fouling him hard. F. Gonzalez required emergency surgery to repair his jaw. Broken in three places, it was wired shut for six weeks. His treating physician believed that a “significant”
blow caused the damage. G. During the course of the trial, defense counsel told the court he intended to propose a jury instruction that: “A person legally consents to conduct that causes or threatens bodily harm if the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful, athletic contest or competitive sport.” H. Reasoning that “our laws are intended to uphold the public peace and regulate behavior of individuals,” the court ruled “that as a matter of law, consent cannot be a defense to an assault.” The court indicated that Shelley could not claim consent because his conduct “exceeded” what is considered within the rules of that particular sport. I. An act is not an assault, if it is done with the consent of the person alleged to be assaulted. It is a defense to a charge of second degree assault occurring in the course of an athletic contest if the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport. The trial court rejected these, and Shelley excepted. The trial court did instruct the jury about self-defense.
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- Supreme Court of the United States, A. Peggy Stewart