Domestic Violence Charges – Blog 12:  The Consent Defense (i.e. Mutual Combat)

By McKinney Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Dallas Cowboys at “The Star” in Frisco put on their pads and helmets on a daily basis, go out onto a football field, and routinely intentionally, knowingly or recklessly cause bodily injury to one another.

We all know that’s not assault because when you put the pads on – you’re agreeing to allow another person to inflict pain.  The contact is welcomed.

This is the law school example of the consent defense to assault and it’s my topic today for my continuing series about defending domestic abuse cases.

Police refer to this as “mutual combat” but legally there is no real term for this in Texas.  The law in Texas calls it consent.

The Legal Definition of “Consent”

Use of force against another person isn’t criminal if the other person “effectively consented” or the person reasonably believed the other has “effectively consented.”  The conduct involved must be limited to bodily injury because a person cannot consent, as a matter of law, to aggravated assault (serious bodily injury).

“Effective consent” is defined in the negative.  We know what it’s not… Consent isn’t effective by reason of youth, mental disease or defect or intoxication.  Consent also isn’t effective if it was induced by force, threat or fraud.

So a person can be acquitted of assault — including domestic violence assault — if the jury is instructed on “consent” and the state fails to show beyond a reasonable doubt (1) the complaining witness did not ‘effectively consent’ to the assault and (2) the assault did not cause or threaten to cause serious bodily injury.

How Could this Possibly Apply in a Family Assault Situation?

An example I’ve given to clients countless times is this:  ever see two people stand toe to toe either in a bar or the high school gym?  What are they communicating to one another?  The answer is  BRING IT ON.  If I physically get in another person’s face, stare them down, and dare them to throw a punch at me — my view is I’ve invited physical contact.

And remember – what legally makes domestic assault is the affirmative finding of family violence done by a judge after either a person has plead guilty or a jury has convicted them of assault.  So all the legal defenses to assault are available to a person regardless of gender or family status.

Also many intimate relationships are reciprocally violent.  That is some couples fight one another on a regular basis and both partners are regularly the aggressor, the victim, or it’s indistinguishable.

Given this backdrop – the bar or schoolyard scenario can happen in a living room too.  It’s dysfunctional to be sure… but some couples engage in mutual combat.

Words enough cannot legally trigger self defense.  But words combined with physical manifestations of agreed contact are enough to trigger consent.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by Thomson Reuters.


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