Throughout American history, the "manly" sports have provided a perpetual test to the legal limits of consent. They have also make us think hard about the boundaries of social welfare and morals. Among the manly sports, the blood sports involving animal fighting, such as bear baiting, dog fighting, cock fighting, and even cricket fighting (who cares about bugs?) can be put to one side. They do not involve true cases of consent as the fighting animal cannot be said to consent to the fight, and thus be complicit in its own demise. (Notably, defenders of these sports in days past argued the opposite. They contended that certain animals, bred to the mast, did have it as their nature to fight, and thus were acting consistent with their preferences.) But the blood sports that involved men, the so-called manly sports such as bare-knuckle boxing, knife fighting, and dueling, were justified on the grounds of consent. Even today the rougher sports, such as boxing, combat and football, survive as a legal matter on the complicity that results from consent. Combatants who are injured or even killed while playing the sport are without legal cause against those who have injured them.
Most of the blood sports involving animals have failed to survive public scrutiny and have been driven underground or even to extinction. Yet some of the blood sports, such as hunting and fishing, survive largely intact, although are highly regulated in terms of time and method. As to the humans-only blood sports, the record is similar. Those that survive are regulated, both publicly and privately, in an attempt to ensure some degree of safety and fair competition within the spirit of the sport. Boxers are matched by weight class and experience; football leagues require helmets and limit blocking and tackling techniques. But many manly sports are no longer legal. Social convention, coupled with the jurisprudence of consent, over time rendered these sports illegal. The practice of bare-knuckle fighting, for example, was banned because it was deemed to corrupt public morals and incite violence. Fighters, the courts held, could not legally consent to acts that might cause them substantial bodily harm and even death.
Our historical ambivalence over the manly sports brings us to the sad case of the thirteen-year-old boy who died racing a motorcycle on the Indianapolis speedway. Which brings us once again to the limits of consent, the role of public morals and sensibilities, and the continuation of dangerous sports. There are no new answers. But there are certainly new questions.
1. What's been happening in the world of sports all around us, right under our noses yet largely unexamined, is the advent of an entire new range of risky sports, including combat in its various forms, "extreme" or "X" sports, and just general daredevilry. Youth motorsports, on motorcycles, dirt bikes or go-carts, fits the bill as well. Even tame pursuits such as bicycling or skateboarding can be easily converted into high-risk activities. Spend a few minutes at your local skatepark or at the ski mountain terrain park. As the father of a daredevil, I have. You will see young prepubescent children flipping and twirling in the air, all without a net and without any formal training. They just go for it. I attended what was called a "jam" session at a local ski area last winter. To the sound of very loud music (yes, TSLP was a bit out of his element), kid after kid rode his snowboard down a short hill, hitting prepared jumps, metal rails, and wood fixtures. Many of the kids did flips and spins; quite a few fell, one so badly I couldn't believe it when he later got back up. (Good luck to the ski resort that one day bases its defense to a law suit on the consent of a twelve-year-old.)
2. Despite what some would like to believe, the fact of the matter is that consent is not an absolute defense. It hasn't been so in this country for nearly a century. Athletic participants can consent to acts that fall within the rules of the game (such as a tackle in football) or to acts that, although against the rules, are fairly within the contemplation of participants (such as the brushback pitch in baseball). But participants cannot lawfully consent to violence that lies outside these common occurrences. Consent is limited.
3. Social approbation is limited as well. Probably nothing happened during a bare knuckle fight that wasn't within the participants' expectations. Yet the sport is banned because lawmakers did not want to allow people to consent to such a contest. Athletic participants can validly consent, but not to acts that carry a high likelihood of causing substantial bodily harm or death. While we vindicate consent, at the same time we have a long history in this country of limiting the scope of permissible consent.
4. Children (perhaps especially boys) love to do risky things. They like to go fast and fly through the air. Left to their own devices, boys will jump off bridges into rivers and lakes, race their bikes, and race on skis. As teenagers they may also race their cars. When they race, they will want to go faster and faster; when they jump, they will want to go higher, further and with higher degrees of danger in their aerial tricks. Despite their danger, few of these activities are prohibited; few are even regulated or supervised or "made safe" to much on an extent. We parents stand by with eyes closed, or look away and hope for the best. But how could these risk-taking boys be stopped? How could they be made safe? Are we to prohibit boys from going fast and jumping high?
5. There are some sporting activities that appear benign but are actually dangerous. The backyard death machine known as the swimming pool fits this bill. Then there are some activities that seem crazily dangerous but that, with adequate training and sensible precautions, can be quite safe, statistically speaking. Rock climbing scares the bejesus out of me, but I've been told often of its comparative safety. From what I've read, it sounds like the motorcycle racing the young boy in Indianapolis was doing falls into this category. It's pretty safe. Yet here's the glitch: the sport is pretty safe, yet it looks so unsafe. The child was traveling over 100 miles per hour! Like the rock climber high on the mountain face or the snowboarder trying to complete two revolutions before landing, the immediate chance of mortal peril are obvious. One slip up and the participant will be badly injured if not killed. No parent panics when his child goes off to baseball practice or takes a swim in the pool, yet all parents swallow hard when their child scales a mountain ledge or flips over backwards on his bicycle. The expected value of injury (so to speak) from all these activities is probably roughly the same. Some sports (football, hockey) carry a high probability of serious yet non-catastrophic injury; other sports (motorcycle racing) carry a very low probability of very catastrophic injury. The nature of the risk and its likelihood might differ, but the risk is still there. Boys will take risks.
6. I think the old-time defenders of animal fighting had it right, in a limited sense. (Not that I condone animal fighting; I don't.) They argued that some animals were born to fight. Putting aside the nature/nurture aspect, I think boys are the same way. As a general matter, boys like to take risks. Some boys are born (or made) to like to take their risks in the catastrophic sense. They want to dangle high on the bridge over the water, and leap far off, narrowly missing the outlying rocks before they splash into the small area deep enough to stop their descent. Others will take on different risks, playing football or baseball or other, non-"extreme" sports. They still take on the risk of injury, albeit with a higher degree of incidence and a lower degree of catastrophy. Maybe others take on non-physical risks as well, playing fantasy sports or online poker. Boys will find their own level of acceptable risk, and what is acceptable will run the gamut from sailing the world's oceans alone to "daring" to hit a wedge shot over a pond in front of the green.
7. There's undoubtedly a large social value in allowing boys (and girls, if they share these preferences) to undertake risks. They learn to function under pressure; they learn the consequences of risk through trial and error; they adopt a competitive, risk-taking approach to life that might pay off for them personally and for us socially as they mature into adults and enter the work world. We try to protect our children and keep them from acting too stupidly. Children are likely to discount the probability of harm and exaggerate their competence (much as parents are likely to do the opposite; my mother had an incredible fear of me having an eye poked out). But all parents know we can't stop them. If they want to take risks, they will find them, even if they have to invent "sports" to provide those risks.
8. Of course it is an unspeakable tragedy when the consequences of all this risk-taking is death. Every year here in the wilds of Oregon, adventuresome people, including young ones, die from rock climbing, mountain climbing, hunting accidents, boating accidents, and the like; plus like everywhere the usual run of automobile accident fatalities and other misfortunes claims victims. Risk and its consequences are all around us. But even death teaches the survivors. It teaches them that the activity indeed is very risky. For adults, the riskiness of most of these activities is self-evident; for children, much less so. The death makes that nature apparent. The death both lures more participants to the sport while it also repels others. Those children who prefer to risk their lives will know of an opportunity to do so, just as those who prefer not to risk so much will shy away. It is gruesome, sad business. Yet it is the business of young men to learn about fire, and despite what parents say, they learn by playing with it.