Tuesday, June 30, 2009

Consent and potentially harmful acts

During last weekend's British and Irish Lions match against South Africa, Schalk Burger, the Springbok flanker, was sent to the sin bin for attempting to eye gouge Lions wing, Luke Fitzgerald. Burger has since received an eight week ban from the international governing body who deem it as one of the most unacceptable and dangerous actions a player can carry out in the game. Yet Peter De Villiers, the Springbok coach, appeared to make comments that justified Burger's actions. He retorted to those complaining about the over-aggressiveness of the South African players which also left Lions prop, Adam Jones with a dislocated shoulder from a dangerous tackle, "why don't we all go to the nearest ballet shop and get some nice tutus, get a great dancing show going on, no eye-gouging, no tackling, no nothing and then we will all enjoy it. There will be collisions in rugby and I will always pick the hardest guy. If people want to make it soft because we won a series, I cannot do anything about it." (Rees, The Guardian)

Whilst De Villiers has been condemned for seeming to condone foul, and potentially very harmful play, arguably the issue behind all of this is not the manner of the action but the matter of consent. Although there are those that would take a paternalistic stance and say that individuals should not be allowed to consent to the possibility of being eye-gouged, the libertarian position states that if 'rational' 'autonomous' adults do agree to be party to such things then that is their perrogative. So for those players that wish to punch, bite and eye gouge they should be free to participate in a sport that allows such things. In the same way, individuals who do not wish to be tackled or the recipient of other physical contact (as defined according to the laws of rugby) should not play that game (they may, as De Villiers suggested, wish to go dancing instead). The relevant issue here is that in the sport of rugby, players are not consenting to being on the receiving end of particular actions like the one received by Fitzgerald and therefore it is wholly unacceptable for any player to carry (or attempt to carry) those actions out. Rather than encouraging foul and dangerous play (in a win-at-all-cost mentality), coaches have a moral duty to ensure that their players recognise that the matter of consent is intrinsic both to the good of the game and to the development of themselves as moral citizens. This is why De Villiers' comments were tasteless at best, and immoral at worst.


Emily Ryall said...

Just read James Lawton's excellent article in the Independent on the subject. http://www.independent.co.uk/sport/rugby/rugby-union/news-comment/james-lawton-turning-a-blind-eye-to-violence-robs-a-noble-sport-of-its-integrity-1724648.html

Emily Ryall said...

And this one from Chris Hewett: http://www.independent.co.uk/sport/rugby/rugby-union/news-comment/chris-hewett-this-era-of-eyegouging-must-come-to-an-end-1724494.html

Leslie A. Howe said...

Is eye-gouging permitted within the rules of rugby? I assume not, since the player was penalised for it. I am familiar with similar disputes in (ice) hockey: one cannot really complain about bodily harm received while playing a game that is physically aggressive at a fundamental level. Thus, in various court cases it has been argued that the player consents to possible bodily harm simply by stepping on to the ice (or field). This is simplistic, though. To be a bit simplistic in the other direction: if an action is punishable under the rules of the game, then in playing the game the player does not consent to having that action visited upon him or her. But there is a risk that it will occur and the player must weigh up the acceptability of that risk. Does doing so and then engaging in play signify consent? Here's the awkward bit: one might say no on the analogy that one does not consent to robbery and assault by walking down a city street, though that is a possibility; assault is still a crime. But whereas, one really has no option not to be part of human society, one does have an option not to play. Hence the coach's retort. But there is a certain disingenuousness in that solution, isn't there? It's like a gang having taken control of your house, and saying, "You'll be beaten up if you come in here--but you don't have to come in here." In short, one consents to those things that are inherent in the game, i.e., actions that fall within the defining rules of the game, but not those that are forbidden by them. This does leave a large grey area, as many actions are "semi-allowed", that is, do not result in ejection, but lesser punishment (penalty box, yellow card, simple foul, etc.). And many offences depend upon the discretion of the officials, which we all know to be variable. Still, one enters the game with the right to expect justice in the interpretation and application of the law, even if reality frequently falls short.

Jim Tantillo said...

"The relevant issue here is that in the sport of rugby, players are not consenting to being on the receiving end of particular actions like the one received by Fitzgerald and therefore it is wholly unacceptable for any player to carry (or attempt to carry) those actions out."

Agreed, but there is also the issue of written versus unwritten rules of the game. For example, there are likely different standards of rule enforcement between NBA basketball, high school basketball, and a five on five pickup game in the Bronx. Whereas a skillfully thrown elbow to the ribs might draw an admiring glance in the NBA, the same elbow would draw a technical foul in a high school game, and be completely expected as "how the game is played" in the streets of the Bronx.

So if these rugby players understand going in to the match that this is how the game is played, then they have in effect given their implicit consent.

Pro hockey in the NHL operates on something like this standard. Players know the game is rough and that people can get hurt--ditto for NFL football.

Now, I know virtually nothing about rugby played at this level. I have no idea if eye-gouging is the equivalent of a skillfully thrown elbow, or is a flagrant foul and blatantly unsporting.

But if you look at the history of prize fighting, eye-gouging used to be part of how the game is played. Broughton's rules and later the Queensbury rules changed all that, e.g., hitting below the belt got codified as illegal, whereas there had previously been an implicit understanding that that is simply how fights were fought.

We'd need to know more about rugby as it played on this level to make a more informed judgment about the morality of the act, or so it seems to me.

Carl Thomen said...

Enter the South African apologist...

Jim: Eye-gouging in rugby is definitely not the equivalent of a skillfully thrown elbow. There is no doubt that players do not consent tacitly or otherwise to the possiblity of eye-gouging when they step onto a rugby field. It is not, and never has been, part of the game in any way.

Em: All that is fair, but you forget the fact that Schalk Burger is too stupid to think up something that malicious. This is not me trying to be funny or trivialize the injury. We are talking about Schalk Burger (the man who, when asked what else was important to him besides rugby, shrugged and said "My plaas en my Castle - My farm and my Castle Beer). I'm pretty certain it was accidental - there is not a malicious bone in God-fearing Schalk's body. I am not condoning eye-gouging, but this is a mitigating factor. As for Jones's dislocation, I must defend De Villiers. Rugby is a hard game, and it seems that it's only the Northern Hemisphere teams (and the English in particular) that complain about our tactics. The Kiwis don't, Australia don't. Could it be because when we play them, it's Maori tribesman and Aussie farm boys vs. South African farm boys, i.e. hard vs. hard? Pulling my tongue out of my cheek, there were no "spear" tackles or high arms. Bakkies just cleared a guy out. And now there's moaning. Sigh. Get harder Lions! Maybe they should recruit KP? :-)

Char Weaving said...

In reference to consent in rugby, some may find the following Canadian rugby story of relevance:

"A teenage rugby player who slammed an Ontario high school opponent to the ground during a match two years ago was convicted on Thursday of manslaughter. In handing down his ruling in a Brampton, Ont., courtroom, Justice Bruce Duncan said the laws of Canada apply equally, on and off the playing field.

The convicted teen, who cannot be identified, was charged after he lifted 15-year-old Manny Castillo into the air, turned him and then drove him head first into the ground during a game at a Mississauga school.

Castillo, a Lorne Park high school student, died from his head injury a few days later. At the opening of the trial, the Crown prosecutor said of the accused, "Had he walked up to Manny Castillo on the street and slammed him into the ground and he died, [the accused] would be guilty of manslaughter."

"There is nothing magical because it happened on a rugby pitch," said prosecutor John Raftery.

The defence claimed her client, who was 16 at the time of the incident, acted in self-defence.

Defence lawyer Lisa White told the judge that Castillo knew he was playing a physical sport and by stepping onto the field, he consented to having physical force exerted against him.

The accused pleaded not guilty and was tried without a jury before Duncan.

The Crown has asked that the teen be sentenced as an adult.

A sentencing date has not been set."

Griff said...

First, I'm not sure about the relevance of consent to consequentialist (esp. utilitarian) normative views. Unless the practice of respecting consent prevents more harm than it causes (or maximizes intrinsic goodness), it is morally irrelevant. And it is not at all clear to me that respecting consent generally leads to the best consequences for all concerned.

This is, of course, not to say that I think consent is not morally significant. Being the sort of quasi-neo-Kantian that I am, I think respecting consent is crucial to treating somebody as more than a mere means, i.e., to respecting individual autonomy. I also agree with Leslie's point that consenting to engage in a certain activity, even if you know it entails a possible (though not probable) risk of harm, does not mean you consent to that harm's obtaining. I am reminded of Judy Thomson's article on the topic of abortion, in which she argues that just because there is a chance that one might become pregnant when one has sex, this does not mean one consents to the pregnancy when one gives informed consent to engage in sexual intercourse.

But this brings us back to the question of what exactly is being consented to. Leslie claims that "one consents to those things that are inherent in [read: "constitutive of"???] the game, i.e., actions that fall within the defining rules of the game, but not those that are forbidden by them." This seems like a good start, so long as we take into consideration Jim's point about the tacit vs. explicit rules of the game. It could be argued that even some of the tacit "rules" (like intentionally fouling when your team is behind at the end of a basketball game) might still be at least partially-constitutive rules. Thus, when you consent to play the game, you consent to players (including yourself) acting in such a manner.

However, we're going to have a difficult time drawing the line regarding what exactly counts as "forbidden" behavior. If I can consent to being (intentionally) fouled by consenting to play basketball, do I thereby also consent to being elbowed, kneed, kicked in the junk, etc.? Where does the foul become too flagrant, such that I can be said to no longer consent to it? Is it possible that this may vary from individual to individual, and if so, might this present a problem?

I hope this comment isn't too rambling and incoherent. Still suffering from jet lag from my move to Germany. :P

Emily Ryall said...

I agree that the last couple of sentences of my post were pretty anaemic and deserved to be consigned to the bin so I have re-edited accordingly. (They were trying to point to an argument that I wished to make but I felt that the post was getting too long and so ended up finishing it rather abruptly.)

Anyway, in relation to a couple of points: Eye gouging has absolutely no part in rugby and I can't imagine how it can be an unintentional or accidental action. Therefore it isn't something that one consents, even tacitly, to.

Let me use a couple of personal examples to illustrate: Last year my collar bone was badly broken in a game of rugby as a result of a high tackle. Although I was laid up for a few weeks and suffered considerable pain, I felt absolutely no animosity towards the player who tackled me because I knew (or at least believed) that she did not intend to harm me by unfair means. I was / am also aware that rugby is a contact sport and 'these things happen'. Contrast that with an incident that happened to me earlier this year where a player intentionally punched me in the face, away from the field of play, which resulted in a broken nose, a severe abrasion of the eyeball, and facial lacerations. As this was an intentional action that is not part of the game, I feel very differently about this, and the player who carried out the action, to the previous one. Whereas I consented to the possibility of being tackled (and that includes a misjudged and high tackle) I did not in any way consent to being deliberately punched in the face.

So what am I saying? Well, perhaps consent is also related to intent so that one consents to another attempting to the best of their ability to play according to the rules of the game. In the first incident, I believe that this is want that player was doing, in the second, I don't believe that she was. That is the difference.

Griff said...

Emily, I think you're onto something by introducing intent into the equation. If we are talking about blameworthiness, it seems we cannot focus solely on the consent of the person being acted upon - we must also focus on the intent of the agent herself.

Of course, it is always rather difficult to figure out whether if one intends the end, one also thereby intends all the means one takes to that end. But if the end is to hurt somebody, that itself seems immoral from the outset.

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