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The Martial Artist's Potential Civil and Criminal Liability - Part II - Criminal Liability

07.01.12  |  By Noah Nunberg

This article examines the practical legal aspects of using martial arts techniques while training in the dojo or in defending oneself on the street. Assault and battery, the main legal rubric which should concern the martial artist, is examined in depth as to potential criminal and civil liabilities which may arise. Both specific cases and hypothetical situations are referred to in order to give the reader some insights into the modern code of conduct under which he or she is expected to abide.

(Caution: The analysis and statements in this article are not meant as any form of legal advice. They are presented here merely for informative and educational purposes to assist the serious martial artist to understand potential legal issues related to teaching, training and self-defense. If you have a legal problem please consult a qualified lawyer.)


Knowledge of the law of assault and battery is an aspect of martial arts training that has been sorely neglected. A practitioner of any martial art should have a general understanding of society's code of conduct in order to understand how to react reasonably to an assailant's attack. Furthermore, society's standards are not shed at the door of the dojo with one's shoes. The law has crucial implications within the confines of the training hall. Although legal niceties do not strictly control a person's conduct in the midst of a street encounter or during fighting within the dojo, a martial artist should take time to reflect upon the legal consequences that flow from using his techniques.

The focus of this article is upon the civil and criminal legal consequences flowing form a non-fatal blow delivered from the hand or foot upon an assailant on the street or opponent in practice. The distinction between the criminal and civil law is fairly obvious. Criminal liability results from a prosecution by the state for an offense or wrong one commits against the public. The primary purpose of a criminal proceeding is to protect the public against the offender by punishing him or eliminating him from society.[i] Generally the state, as the protector of the public welfare, defines criminal offenses in statutes promulgated by the legislature. Civil liability, on the other hand, flows from a civil proceeding brought by one individual, the plaintiff in a lawsuit, against another, the defendant, to be compensated monetarily for the damages resulting from a wrong or tort committed against him. These two classes are not mutually exclusive. That is to say, the same act can lead to both criminal and civil proceedings.


Criminal versus Civil Liability

Most criminal statutes abandon the strict definition of the term assault and use this term also where physical contact takes place. Before analyzing the criminal law aspects of using a martial arts technique, the distinction between the civil and criminal law should be reiterated at this point. The civil law protects an individual's private rights from illegal interference by other individuals by the court's imposition of monetary or injunctive relief granted to a successful party. In the criminal law a broader purpose than a private right is at stake. It is the public consciousness and morality as expressed in its statutes which are being vindicated.

Further, as amplified below, a defendant must have mens rea, or criminal intent, to be found guilty of a criminal act. The prosecutor must prove beyond a reasonable doubt not only the criminal act, but also the degree of criminal intent that the defendant had when she committed the crime.

Generally Consent Cannot Be Legally Given to a Criminal Act

This distinct philosophical underpinning has practical implications in the area of consent. Whereas an individual may consent to be forcefully struck and thereby waive his legal right to sue for the tort of battery committed against him, an individual's consent cannot eliminate the crime which has been committed. In other words, individuals cannot consent to the commission of a crime with impunity. This is so because the public's interest in safeguarding the health, safety and welfare of its citizenry would otherwise be eroded by individuals who simply agree to break the law.[vi] Accordingly, under Section 35.15(1)(c) of the New York Penal Law a defendant cannot claim "self-defense" when he was engaged in "combat by agreement not specifically authorized by law."

Similarly, since the 19th century, dueling has been outlawed in all states even though both parties consent to the activity, in recognition of society's interest in preventing the infliction of death or serious bodily harm upon its citizenry. Dueling is defined as "the act of fighting with deadly weapons between two persons in pursuance of a previous agreement."[vii] Although the parties consent to the activity, the criminality of the act is by no means vitiated.

The Defense of Consent

That is not to say that consent is totally irrelevant to the criminal law of assault and battery. Criminal prosecutions have resulted from fights on the ice in hockey games where players were seriously injured. In a 1969 altercation involving Wayne Maki of the St. Louis Blues and Ted Green of the Boston Bruins, Green struck Maki with his glove and stick in the face and Maki retaliated by striking Green in the head with his stick, which blow fractured Green's skull. Green was charged with assault, and Maki with aggravated assault. Both players were acquitted after their respective trials.

In the Green case, the court found that striking to the face is a common occurrence in the game, and, accordingly, players consent to such foreseeable activity, at least where a high risk of serious injury is not involved. Maki, on the other hand, was acquitted, not because of any consent to the serious blows, but because the court deemed his actions were instinctive reactions of self-defense. The Maki court in dicta discussed the consent defense, but concluded that "there is a question of degree involved, and no athlete should be presumed to accept a malicious, unprovoked or overly violent attack."

More recently, the NHL hockey player, Marty McSorley, a Boston Bruins defenseman, was found guilty of assault with a weapon. McSorley hit Donald Brashear, a Vancouver Canucks forward. As Brashear skated with his back to McSorley, McSorley slashed him from behind with his stick and struck the side of Brashear's head. The court rejected McSorley's defense that NHL players give "explicit consent" to the risk of on-ice contact and that McSorley's hit was not an assault.

Therefore, it is clear that a martial artist will not be immune from criminal prosecution if his conduct in the dojo is egregiously improper.

Consent to Bodily Harm

The 1962 proposed draft of the Model Penal Code attempted to formulate the defense of consent to bodily harm in the following language:

(2) Consent to Bodily Harm. When conduct is charged to constitute an offense because it causes or threatens bodily harm, consent to such conduct or to the infliction of such harm is a defense if:

(a) the bodily harm consented to or threatened by the conduct consented to is not serious; or

(b) the conduct and the harm are reasonably foreseeable hazards of joint participation in a lawful athletic or competitive sport, . . . .

Thus, under this formulation consent may be effective either where no serious injury is threatened by the activity or where both the conduct and harm consented to be reasonably foreseeable within the activity itself.

Basic Concepts Under Criminal Law

To understand the criminal law of assault and battery some basic concepts inherent to the criminal law must be examined. Generally speaking a crime is composed of two elements: (1) the commission of an illegal act, and (2) the intent to do the act. The latter requirement of intent is technically referred to as mens rea ("guilty mind"). Thus, the same act can have different legal consequences depending on the corresponding intent with which it is committed. For example, if a defendant shoots his victim with a gun intending to wound his victim, but the victim is killed, the defendant is guilty of manslaughter. However, if the defendant shoots with the intent to kill his victim and accomplishes his desire, he has committed murder.

Degrees of Intent

The spectrum of intent, sometimes referred to as scienter, ranges upward as follows: "criminal negligence" - "recklessness" - "general intent" - "specific intent." Criminal negligence or gross negligence is a notch above negligence, which, as explained above, is an objective standard used in tort law.

The negligence standard posits a hypothetically reasonable man acting under the circumstances of the particular case with the degree of care society deems to be reasonable. If the defendant acted unreasonably and created a foreseeable risk of harm to the defendant and as a direct consequence of the act in injury was caused to the plaintiff, the negligent defendant will be held civilly liable for damages. Negligence alone, however, is insufficient to justify a criminal prosecution.

Generally, the intent requirements of a crime requires that a prosecutor prove the specific subjective evil motive held by the perpetrator at the time he committed the crime, rather than merely demonstrating the objective unreasonableness of the act causing injury, which is sufficient for a plaintiff to prove that a defendant is civilly liable for negligence. The intent or mens rea requirement for a criminal conviction ranges from the very general and unformed, yet manifesting more guilt than mere negligence, to a very specific intent to commit a particular act.

Let us revisit the rude individual who while walking down a sidewalk suddenly sees another person in his way, and instinctively pushes the other stroller aside to get past him. The rude stroller has committed a civil battery. If this individual actually punches his victim intending to strike his eye, a criminal act is committed rather than merely a tort. The intent in this latter example, was more formulated and of a more evil nature in the eyes of the law than the former instinctive act, since it was motivated by a desire to cause physical injury. The former, in all probability, would not be a criminal act, because of the lack of criminal intent. Nevertheless, the volitional act of touching another person was committed and a tort was thereby consummated.

Simple versus Aggravated Assault

Historically, a distinction came into existence between simple assault and aggravated assault. At common law all assaults or batteries were classified as simple assaults and were treated as misdemeanors. Aggravated assaults were a classification of assault created by legislatures which required a specific felonious intent coupled with the act. The punishment meted out was more severe than that in simple assault; however, the punishment was less harsh than the crime of mayhem, a common law felony in which permanent injury was inflicted on the victim. Thus, aggravated assault was a statutory bridge filling the large common law gap between simple assault and mayhem.[viii]

Statutory Degrees of Assault

This historical, common law distinction has been carried forward into contemporary criminal statutes. The New York Penal Law has three degrees of assault. "Assault in the third degree," a misdemeanor and the lowest degree of criminal assault, is defined as follows:

Section 120.00 Assault in the third degree. A person is guilty of assault in the third degree when:

1. With the intent to cause physical injury to another person, he causes such injury to such person or to a third person; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument."

The action banned by the statute is causing "physical injury" as opposed to "serious bodily injury."The requisite mens rea or evil intent can range from the specific intent of causing physical injury (subparagraph1); to recklessness which is a less specific intent (subparagraph 2); to criminal negligence, which is least blameworthy intent but requires the instrumentality of a deadly or dangerous instrument (subparagraph 3).

"Assault in the second degree," a felony under Section 120.05 of the New York Penal Code, is a more serious crime in that the intent of the perpetrator is to cause "serious physical injury to a person," and the defendant must cause such injury either to that person or another. Alternatively, the statute defines second degree assault as having the intent merely to cause "physical injury" to another person, but causing such injury with a deadly weapon or dangerous instrument. Thirdly, the statute defines second degree assault as recklessly causing serious injury with a deadly weapon or dangerous instrument.

First degree assault under Section 120.10 of the New York Penal Law follows the same paradigm as the other degrees. This section requires the intent to cause "serious physical injury" and further requires the actual causing of such injury "by means of a deadly weapon or a dangerous instrument." The next subsection, which resembles common law mayhem, calls for the specific intent "to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ" of another person's body and actually causing such injury to another person. It should be noted that the instrumentality used is irrelevant in this subsection. Accordingly, if one intends to disfigure a victim or destroy an organ, such as an eye, and does it with his empty hand or unclad foot, he is guilty of first degree assault.

It should also be noted that the statute does not require that the person towards whom the defendant focuses his intent be the same person to whom the injury is inflicted. This concept is referred to as "transferred intent." Thus, if A intends to assault B but instead accidentally assaults C, the statutory requirements are satisfied even though the intended victim is not touched. The same concept exists in the civil law of battery.

The case law fleshes out the above statutory definitions and makes them much more understandable. In People v. Hall, 209 N.Y.S.2d 917 (2d Dep't 1961), the defendant kicked his victim in the abdomen with such force as to rupture his liver, causing her death. The defendant's conviction under second degree assault was reversed by the appellate court. Although defendant had inflicted "grievous bodily harm" - which was the statutory wording preceding the present statute which uses the language "serious physical injury" - the court stated that it found no evidence to prove "the coextensive intent to inflict any 'grievous bodily harm' in defendant."Since there was a lack of proof of this essential element of specific intent, the conviction under second degree assault could not stand.

It should be noted that other jurisdictions do not accept this interpretation, but rather say that the intent to do the act of kicking would have sufficed for second degree assault as long as the resulting injury is serious bodily injury or grievous bodily harm.

The Hand or Foot as a "Deadly Weapon"

Most important to the martial artist's analysis of the law is the question of whether the hand or foot can be classified as a deadly weapon or dangerous instrument. As in many other areas of the law, there is no unity of opinion. Some jurisdictions hinge upon a literal translation of the statute and hold that the hand or foot is not commonly understood as a deadly weapon or dangerous instrument; therefore, an assault with the hand or foot is not deemed to be an aggravated assault with a deadly weapon or dangerous instrument. Other jurisdictions, including New York, have a broader view and hold that while feet and hands are not deadly or dangerous weapons per se, the manner of their use in particular situations may make them deadly weapons.[ix]

The New York Penal Law in Section 10.00 defines "deadly weapon" and "dangerous instrument," respectively, as follows:

"12. Deadly instrument means any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, dagger, billy, blackjack, or metal knuckles.

"13. Dangerous instrument means any instrument, article or substance, including a vehicle as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." (emphasis supplied).

The New York case of People v. Rumaner, 357 N.Y.S.2d 735 (3d Dep't 1974), discussed this particular question. The bouncer in a bar was grabbed by defendant, who knocked him down and kicked him ten or twelve times in the face while wearing heavy boots. The victim was severely injured, and his vision was permanently impaired. The defendant was convicted of second degree assault.

The defendant argued on appeal that no intent had been proved, but this was rejected by the court. It held that the requisite intent could be inferred from the defendant's conduct. The fact that he stomped on the victim's head ten or twelve times negated any defense that his actions were inadvertent and provided sufficient proof of the required criminal intent.

The defendant also argued that his boots were not dangerous instruments, which was also rebuffed by the court, which stated:

"Any instrument, article or substance which under the circumstances in which it is used, is capable of causing death or other serious physical injury is a dangerous instrument within the meaning of the statute."

Therefore, the court concluded that the trier of fact was justified in finding that the boots were a dangerous instrument since they were used to inflict the serious physical injury upon the victim.

In People v. Carter, 53 N.Y.2d 113 (1981), the New York Court of Appeals upheld a conviction of assault in the first degree where the defendant, while wearing rubber boots, punched and kicked his victim into a comatose state. The Court held that the rubber boots were "dangerous instruments" in light of the manner in which the defendant administered the "vicious stomping." The Court noted that the New York definition of dangerous instrument is expansive enough to make any object, no matter how innocuous it appears when used for its normal purpose, a dangerous instrument "when it is used in a manner which renders it readily capable of causing serious physical injury." Even a handkerchief, the court noted, can fall into this definition when used to asphyxiate a victim, although it is by no means an inherently dangerous instrument.

Although many cases look to the type of shoe or boot worn by the defendant to see if a dangerous instrument was in fact used, jurisdictions in which courts apply an expanded interpretation of "deadly weapon" or 'dangerous instrument" may hold that an unclad foot or fist falls within these categories. Certainly these courts will look to the circumstances in which they are used, including the ability and strength with which the perpetrator uses them. Thus, a prosecutor could and most certainly would use the fact that one is highly trained in a martial art to show his use of his hands or feet constitute the use of a deadly weapon or dangerous instrument where serious bodily injury is ultimately inflicted by the martial artist.

The "Self-Defense" Defense

The properly trained martial artist will have, in most instances, the defense of self-defense. Under the New York Penal Law self-defense is known as the defense of "justification" as defined under Section 35.15. The statute classifies the defense into two major categories where either simple physical force or deadly physical force is used to defend oneself or another. With regard to the use of physical force, this section provides as follows:

"Section 35.15 Justification; use of physical force in defense of a person

"1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter's conduct was provoked by the actor himself with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor, except that in such case his use of physical force is nevertheless justifiable if he has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force:

(c) The physical force involved is the produce of a combat by agreement not specifically authorized by law."

As previously noted, the force may be used to defend oneself or another where one "reasonably believes" that an attack of like nature is being made upon him or another person, and this reasonable belief may in reality be a mistaken one.

Furthermore, if the initial aggressor withdraws effectively, he may defend himself against the uncalled for onslaught of the initial victim. Thus, the law only recognizes the defense where the attack is in progress or is imminent, and refuses to allow the victim to pursue a course of revenge against his assailant after the attack is over.

With regard to "deadly physical force," Section 35.15 further provides as follows:

2. A person may not use deadly physical force upon another person under the circumstances specified in subdivision one unless:

(a) He reasonably believes that such other person is using or is about to use deadly physical force. Even in such a case, however the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating, except he is under no duty to retreat if he is:

(i) in his dwelling and not the initial aggressor; or

(ii) a police officer or peace officer or a person assisting a police officer or peace officer at the latter's direction, acting pursuant to section 35.330; or

(b) He reasonably believes that such other person is committing or attempting to commit a kidnaping, forcible rape, forcible sodomy or robbery; or

(c) He reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of Section 35.20."

This section makes clear that deadly force may be used where like force is used or is about to be used against the attackee; however, there is a clear duty to retreat where one may do so with safety. The duty to retreat does not apply where one is in his home and he is not the initial aggressor. Also a police officer need not retreat when he is making a felony arrest, which generally includes a crime involving the use or threatened use of physical force. Also, an individual who is rightfully in a dwelling or an occupied building may use deadly force if, (1) he reasonably believes a burglary is being committed or attempted, and (2) he reasonably believes such force to be necessary to prevent the commission or attempted commission of the burglary.

As can be seen, the law is quite exacting in its requirements before it permits an individual to use deadly physical force to protect himself. However, where the martial artist uses his empty hands or bare feet to defend himself or herself, the law rarely finds such force deadly. Certainly if the attacker is rendered unconscious by the martial artist's blows, the defender must, under the law, stop his defensive attack since the initial aggressor has been rendered helpless. If the defensive attack is continued, the martial artist becomes the aggressor and becomes criminally liable for his actions.

With the dojo, criminal violations may occur if the practitioners embark on a conflict that escalates beyond the reasonable realm of normal practice and the participants intend to inflict serious physical harm upon each other and are successful in their desire. As the cases noted above make clear, kicking a victim with intent to cause serious injury constitutes criminal assault where such injury is actually inflicted.

Let us return to the hypothetical situation where A blocks B's incoming knife attack during a practice session in the dojo. B stands prone allowing A to complete his defensive maneuvers. A, who has lost may free-style matches to B, now sees his opportunity to eliminate his foe and kicks B violently in the pubic region causing severe internal hemorrhaging. Under these circumstances A is guilty of second degree assault. A intended to cause B serious physical injury and was successful in doing so. The mere fact that B consented to practice knife attacks with A is no legal defense for A's criminal act. A's actions clearly exceeded the bounds of B's consent when A embarked on his course of revenge.

If B, however, perceives A's violent attack and instinctively protects himself with a technique causing serious injury to A, then B will have the legal defense of justification. B reasonably believed that A departed from the practicing which A and B agreed to engage in and that A was attempting to cause B physical harm. Under such circumstances B could use reasonable force to defend himself from the physical attack. However, B could not use the knife and stab A in the chest. Deadly physical force was not threatened by A. Therefore, B cannot use such force on A.


As can be seen from the above discussion, students of the martial arts must take into account the law of assault and battery in their use of Karate techniques both inside and outside the dojo. A serious student of the martial arts who reasonably employs his techniques solely for defensive purposes on the street and who comports with bushido within the dojo most assuredly will have no legal problems as a result of using his training One who misuses the weaponless weapon his Master has given him will not do so with impunity.


Assault - Threatening to strike or harm another person.

Assumption of risk- A defense to a claim for negligent injury to a person or property, i.e., a person who voluntarily exposes himself or his property to a known danger may not recover for injuries thereby sustained.

Battery - An unlawful touching, beating, wounding, or laying hold, however, trifling, of another=s person or clothing without consent.

Defendant - One against whom a lawsuit is brought.
Mens rea - Criminal intent; evil intent; guilty intent. 
Negligence - A flexible term for the failure to use ordinary care under the particular factual circumstances.
Plaintiff -  One who initiates a lawsuit against another called the defendant.
Scienter - (knowingly, wilfully), an element in crime and some civil wrongs, descriptive of the perpetrator=s guilty knowledge.
Tort - Any one of various, legally recognized, private injuries or wrongs, which do not arise as the result of a breach of contract.


[1].  W. L. Prosser, Handbook of the Law of Torts, ' 2, at 7-9 (4th ed. 1981) [hereinafter referred to as Prosser].
[2].  Prosser, ' 18, at 103.
[3].  F. V. Harper and F. James, Jr., The Law of Torts, ' 3.10, at 233 (1956) [hereinafter referred to as Harper and James].
[4].  Draeger and Smith, Asian Fighting Arts 85 (1974).
[5].  Prosser ' 19, at 110.    
[6].  Note, Consent in Criminal Law: Violence in Sports, 75 Mich. L. Rev. 148, 150 n. 12, 162-63 (1976).
[7].  28 Corp. Jur. Sec., Dueling ' 1, at 580 (1941)
[8].  Model Penal Code and Commentaries, Part II, ' 211.11, Comment 1(a) (1980).
[9].  Annot., Kicking as Aggravated Assault, or Assault with Dangerous or Deadly weapon, 33 A.L.R.3d 922 (1970).

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