Shodan Cultural Essay
A student of the martial arts has two roles in life. First, he is a martial artist in the outside world. This is a world filled with individuals, most of which have no martial arts training. Secondly, when performing his art, he is a student in a martial arts dojo. The law governs both of these areas. In this paper I plan to examine what laws apply depending on what setting the martial artist finds himself in. The first topic to be examined is what laws apply in the dojo during martial arts instruction. Before beginning this discussion it is important to remember when the law enters the area of martial arts. The law does not govern the martial arts itself in the same way that the law governs real estate transactions or corporate mergers. The law most often comes into play in a martial arts setting when an injury occurs and the courts need to determine the issue of liability.
A martial arts class offers many opportunities for individuals to suffer injuries. In these situations it is easy for a sensei or fellow student to suffer consequences of liability if the law is not known. The key concept to remember in the legal practice of martial arts is "consent." This is the reason why nearly all dojos and other sports clubs require permission forms before engaging in activities. The general rule is that one is not liable for damages inflicted upon another for an act the victim consented to. For example, if a tori throws an uki and the uki accidentally breaks his wrist, the uki cannot recover if he consented to the throw. Conversely, if an upper belt decides to viciously strike a student when that student's back is turned, he or she is liable since the victim did not consent to that attack.
Many jurisdictions have narrowed this idea of consent to say that all martial artists consent to any martial arts related activity simply by being present in a dojo. This is called "assumption of the risk." This would allow injured students to recover only for injuries inflicted in a dojo through actions not normally a part of a martial arts class. For example, if one student spills water, which causes another person to slip and be injured, courts will likely find that the victim did not consent to this injury in the same way that he or she would have consented to an injury from a koshi nage.
The book The Law and Martial Arts lists the four areas in which dojo injuries fall under. They are; sparring injuries, mutual combat injuries, instructor negligence injuries, and discipline injuries. Each of these areas and their respective applicable laws will be explained.
Sparring injuries occur when two individuals engage in a practice session. Here, if an injury occurs, courts ask if the person injured "fully appreciated the risks inherent in the competition." If a brown belt asks a white belt to randori on his first class, courts are more likely to find liability than if two brown belts engaged in this activity. The white belt may have assumed the risk of attending class, however he did not fully appreciate the consequences of this particular activity.
The second area, mutual combat, is much more complex. The general rule is that two individuals engaging in mutual combat are both liable for injuries that they inflict upon one another. Courts have relaxed this rule, in the dojo setting, in order to prevent the plethora of potential lawsuits arising from martial arts tournaments. However, this rule changes when the conduct is not in a martial arts setting. As seen in the case of Shay v. Thompson 59 Wis. 540 (1884), illegal mutual combat between strangers is often labeled the fault of the aggressor. This area of the law is not absolute and often contradicts itself. The rule adopted by the courts depends entirely on the facts of the situation.
Negligence of the instructor is the third area. When a student is injured during a martial arts class, he may often seek to have his instructor held liable. Take for instance the case of Klocek v. YMCA of Metro Milwaukee 48 Wis2d 43 (1970), which involved a new student suing his instructor for being injured while receiving an osoto gari. Here the court, in determining the fitness of the instructor, examined (1) the rank of the instructor, (2) the ability of the instructor to teach the technique which caused the plaintiff's injuries and (3) and the traditional factors of negligence. These are the general factors a court applies when examining if a particular injury is the fault of the instructor. The court in this case found that the instructor (a Shodan) was qualified to teach this particular technique and found any injury to be covered under an assumption of the risk accepted by the student upon entering the dojo.
Injuries received as a result of discipline within the dojo are the final area under which a martial arts injury can be classified. In this area, courts are less likely to find liability. Here the issue of consent comes into play very strongly. If an injury occurs as a result of disciplining, courts will ask whether the victim willingly put himself in a position to be injured. An individual who knows there is a risk of being physically discipline should not have put himself in the position in the first place. If the individual consented to the act then there can be no liability. This type of physically discipline is strictly limited temporally. Take the case of Story v. Martin La.App. 217 So.2d 758 (1969), for instance. In this case an instructor struck a student after class hours to discipline him. Despite the fact that the student had previously consented to this type of conduct, it was not allowed due to it taking place outside the time limits of class.
The second aspect of martial arts law to be examined by this paper is how the use of martial arts is viewed by courts outside of the dojo. Martial arts, when taught properly and for the right reasons, is the art of self-defense. Therefore, any law governing self-defense governs the proper use of martial arts. In the American legal system, self-defense is heavily debated topic. When is it appropriate? How much is too much? When does self-defense cross the line and become an attack? Martial artists, when faced with the opportunity to use their art for its true purpose of defending themselves, should know the answers to these questions. Martial artists have the unique knowledge that allows them to quickly and competently defend themselves when under attack. Because of this unique knowledge they can, if they so desire, end an attack quickly with little to no harm to either side or cause serious injury or death. Because of this great skill possessed by several members of society, a fine line has been drawn by the courts that governs the use of self-defense so as to lessen to the possibility of unnecessary injury. In this section of the paper I plan to tell of how a student of the martial arts is viewed by the courts, what levels of force are applicable in what types of situations and give real world examples of this law in action. In addition, this paper will also explain which areas of the law self-defense arises under. This latter will be addressed first so as to give a more adequate background
As mentioned above, one of the main intentions of the martial arts is to educate its students in the proper and effective methods of self-defense. Martial artists will find themselves dealing with the law usually when their use of self-defense is being questioned. If a martial artist finds himself in conflict with the law (for a reason relating to his skills) it is oftentimes for a tort like Battery or Assault. Battery is a tort that arises when one individual intends to touch another person and does so knowing that this other person will be offended. A person can commit a battery by doing something so simple as spitting on an individual or something as serious as striking a person. Assault is what often precedes a battery. It is putting someone in fear of being battered, but does not actually involve touching. Clearly, defending oneself physically would fit into the descriptions of both of these torts. It is when self-defense is challenged as being improperly used that the law comes into play. When a martial artist defends his use of self-defense, he raises what is called an "affirmative defense." An affirmative defense is an individual's way of saying, "I did the illegal act that I am being charged with, but I had a legally justifiable reason to do so." Self-defense is an acceptable affirmative defense listed in the Rules of Civil Procedure.
Before beginning an analysis of self-defense, one need understand a doctrine known as the Duty to Retreat. The Duty to Retreat is applicable law in about one half of the fifty states and most often applies more to the higher levels of defensive force. This duty requires that a person use all available avenues of retreat available before engaging in self-defense. If a person has a chance to escape then he must take it or run the risk or improperly using self-defense. Thus, a person held up with a knife in a park, should (absent specific circumstances) generally attempt to escape first. However, a person held up by an attacker with a firearm or in an enclosed area has less of a chance of retreat and is more justified in using self-defense. An exception to the Duty to Retreat doctrine is the Castle Rule. The Castle Rule allows a person to bypass the Duty to Retreat if he or she is already in their home. The theory behind this is that a person retreats in order to find sanctuary and if the home is not safe then there is no safe area.
The key concept in determining the appropriate (if any) level of force and determining whether the attack was done maliciously or in self-defense is "proportionality." The level of force exerted in defense must be less than or equal to the potential harm to the intended victim. Therefore, if an attacker who is not armed holds up a person, he cannot, absent extreme circumstances, pull out a firearm and kill his attacker. Such action would most likely be viewed as being malicious and would go above and beyond that required to end the aggression. Many court opinions, when examining proportionality, allow just enough force to end the immediate threat and stop the potential of any immediate future harm.
If a person is attacked, that person's only goal should be to avoid being hurt. When this threat stops, so should the defensive force. Thus, we see the basis of the old adage "Don't kick a man when he's down." If the attacker shows signs of resuming his assault then the defense can resume, but anything beyond that is vengeful and malicious and is so viewed by the courts. The law does not recognize revenge as a legitimate use of force. Many martial arts recognize this belief and advocates it through teachings like a particular Kung Fu adage stating, "Learn the ways to preserve rather than destroy. Avoid rather than check; check rather than hurt; hurt rather than maim, maim rather than kill; for all life is precious, nor can any be replaced."
A martial artist above all others is capable of seriously hurting or killing their assailant. Even if a martial artist does not intend to kill his attacker, he may take an action that happens to kill or seriously injure the person. For example, a koshi nage done properly to a student in class has little possibility to cause serious harm to the trained uki. However, a koshi nage done in, what the martial artist hopes, is simple self-defense could be deadly to an average individual. A martial artist could accidentally cause greater harm than intended if he is not careful, thus running the risk of maiming or killing his attacker. By examining trends in the law, we see that force that is serious and deadly is limited in its use. The general rule is that deadly force is not allowed unless under extreme circumstances. Courts have labeled three major areas in which deadly force is acceptable.
The first area is sexual assault. A person who is the intended or actual victim of a sexual assault is allowed to use deadly force to prevent or halt the intended harm. The main reasoning behind this rule is that it is difficult for a person to find a proportional level of self-defense when one is being sexually assaulted. Thus, since this assault is so terrible to the victim and has no appropriate defense to match, deadly force will be allowed if the assault is extreme enough. Another reason for sexual assault's allowance for deadly force is that it is most often done to women. Women are often smaller than most men and thus have less of a chance of subduing their often-larger attackers with a lesser degree of force.
The second area in which deadly force is proper is when there is a threat of deadly force directed to the victim himself. Clearly, if a person is being threatened with deadly force, deadly force as a defense would be proportional to the attack. Many of the more liberal legal theorists argue that deadly force as a defense merely trades one death for another. However, courts justify their rulings by stating that deadly force as a defense is the lesser of two evils. Obviously, in a situation involving an individual attacking a trained martial artist with intent to kill will result in someone's death. Seeing as how the victim presents a smaller possibility of recommitting his actions and is less of a societal menace, then his deadly force is a lesser evil than that of the predatory attacker.
The third area recognized by courts is when there is a risk of serious bodily injury to the victim. This area is often merged with the area of the threat of deadly force. The reason being is that it is often difficult to ascertain which outcome will occur when being attacked. For example, a knife-wielding attacker is just as likely to kill his victim as he is to seriously wound him with the weapon. Serious bodily injury is classified as being an injury that severely hampers the quality of life that the victim currently enjoys. Thus, a victim who is threatened with the injury of having his legs cut off is being threatened with a serious bodily injury. Courts have deemed it acceptable for a victim to use deadly force in this situation rather than suffer the severe pain and potential eventual death that may result from an attack intending to cause serious bodily harm.
Naturally the reverse of these three areas is also true when dealing with a martial artist. If an average person is being or feels that they are about to be attacked by a martial artist, then the level of applicable force that they may use in self-defense is higher than if they were defending against a regular individual. Courts view an empty handed martial artist as being in possession of a weapon. Therefore, if another martial artist attacks a regular person or even a second martial artist, the level of applicable proportional force will be higher.
Additionally, in tort law there is a doctrine known as the Thin Skull Plaintiff. This doctrine tells all users of force that they "take the plaintiff as they find them." If the plaintiff has a thin skull then it is your fault for aggravating this condition. This means that if you are an individual defending yourself and you strike a person in the head, you are liable for any consequential damages. If this person has a brain condition that causes him to fatally hemorrhage when struck, you are liable for his death even if you only intended slight harm.
It is important to remember that these three areas and the use of self-defense as a whole is subjective. The area of self-defense is twofold. Primarily there is self-defense by justification. This of course is justified self-defense and is governed by proportionality. The victim exercises self-defense and his actions were justified due to the circumstances of the attack. In addition, there is also self-defense by excuse. This second aspect of self-defense is contingent on what the victim reasonably believes as opposed to what is actually occurring. For example, a person uses self-defense because he reasonably believes that he or she is being threatened with harm. Whether or not the person is actually in danger of suffering the anticipated injury is not as important as what the victim "reasonably" believes. Take for instance the holding in the case of, Young v. People 47 Colo. 352, 107 P. 274, that states,
"…When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm, is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the real or actual danger"
Just as the key concept in determining the applicable level of force is "proportionality", the key concept in this area of the law is "reasonableness." A person need reasonably believe that it is more than likely s/he will suffer the specific harm feared. Even if mistaken, if the court finds that the belief on the part of the person exercising self-defense (in our current situation this would be an exercise of martial arts techniques) is reasonable due to the circumstances, then the self-defense will be legitimate. Therefore, a situation involving a lone woman being confronted by several belligerent men has more credibility to lend to the reasonable belief of death/rape/bodily harm than a situation involving an unarmed man simply approaching a victim. Both self-defense by justification and excuse apply to varying levels of defense from minimal to deadly force.
In determining whether the self-defense was through justification, excuse or not justified at all, courts have two current schools of thought. The minority view is that a court must employ a subjective analysis. The subjective analysis looks at the situation from what the person exercising the self-defense knows and has experienced. For example, the case of The State v. Leidholm 334 N.W.2d 811 (1983), a wife killed her abusive husband. The husband had done nothing to harm her at the time. He simply had a look on his face that she came to know as threatening. The court viewed her actions in light of her living 25 years with abuse and knowing her husband's personality and found she acted in proper self-defense. Conversely, the majority opinion is to view the defender's actions in an objective light and consider no extraneous factors aside from those present at the time force was applied. Therefore, under this analysis the defendant in Leidholm would not have been acquitted due to her not having been threatened or injured as of the time of self-defense. A martial artist should be aware of these two views and know the applicable school of thought for his home state in the event his skills are required to defend his person.
Although the term "self-defense" seems to apply to defending one's own body, a person can also use reasonable force in defense of another individual or of their property. The law is much the same for the defense of third parties as it is for defending oneself. If A sees B attacking C, then A, to defend C, may use whatever force would be proportional if A were in C's place. No new rules apply. However, the defense of property is much different. How does one measure proportionality if one's person is not in danger of being harmed? Courts have answered this question by stating that a person can use self-defense to reclaim or protect their property only if the level of force exercised was the absolute bare minimum required. Therefore, if someone steals a purple belt's wallet, the purple belt is justified in grabbing the person to retrieve his property. However, he is not justified in fully performing an oni kudaki. For better clarification, one can look to the case of Katko v. Briney 183 N.W.2d 657 (1971). This case involved a farmer who was plagued by thieves who robbed him of antique mason jars that he stored in his shed. The farmer obviously did not enjoy being robbed and he set up a shotgun trap in the shed that was triggered when the first thief opened the door. The trap worked the following night and subsequently blew off the leg of the first thief. This level of defense was found to be well above that which was required to protect the property. Thus the area of protecting property above all other areas requires that a martial artist or anyone exercising self-defense use the highest restraint.
When confronted with a party that is a martial arts student, a court will often factor this into their analysis of the situation. Martial artists are viewed as being in possession of extra knowledge. Most frequently, a court examines this extra knowledge when determining proportionality. First, let us say that a man attacks another man in an alley. The man under attack manages to disable his attacker and physically harms him as a result. The court will consider several factors in determining whether the force was proportional. If the attacker is larger than the defender, then the level of allowable force would be greater than if both individuals were of equal size. Other factors are also weighed in. These include, but are not limited to; whether one party is a female, whether one party is intoxicated, armed, known to be a societal menace, handicapped, belligerent, etc. Thus, if a man attacks a woman, and the woman harms the man severely, a court may not look upon her actions as harshly as they would if she were a man in the same situation due to the average women so often being in possession of a smaller stature than the average man.
Among the aforementioned factors is the degree of the standard of care owed to the attacker by the victim. Every person in the world owes every other person a certain standard of care that differs depending both on the parties' relationship and their knowledge. For example, two strangers have a different standard of care to one another than a doctor has to his or her patient. Strangers owe one another a duty simply to refrain from wanton conduct. However, a doctor, seeing as how he has a connection to his patient that relates to his special skills has a higher standard of care. Therefore, he has a greater responsibility for smaller accidents than he would without this relationship. If either party is a martial artist then the courts will examine their actions in light of this standard of care. Take this hypothetical for example:
A brown belt level Ju-Jitsu student foolishly walks alone down an unlit city street very early in the morning before the sun has risen. Unfortunately, the young man is attacked by gun-wielding aggressor who thinks he has found an easy target to rob. The attacker places his gun to the victim's temple while standing behind him and demanding his wallet. The victim, not wanting to relinquish his money so easily, decides to use a disarm technique taught to him in class. The technique involves spinning one's body and grabbing the gun in a such a manner so as to trap the attacker's finger on the trigger while the barrel of the gun is pointed towards its owner. The student begins his technique and successfully completes it. The student fails to foresee that the attacker will panic and attempt to free himself from the gun now pressing painfully into his index finger. The gun accidentally goes off and kills the attacker.
Now, take the same hypothetical and change two facts. Make the victim an average man with no martial arts knowledge and change the disarm technique into just a random flailing attempt at self-defense. In both instances an accidental death still results. Were you a judge faced with these two situations, would you be tempted to view them differently? Courts most likely would view the two defendants differently due to their differing skills in self-defense. The martial artist, had he desired to, would be more adept in killing his attacker. Courts recognize this and, while certainly not always amounting to a verdict of guilty, do consider it as a special skill warranting a higher duty on the part of the martial artist to exercise care.
Take an outside example for better clarification. Let us say that a person on an airplane begins to choke and a person on that plane attempts to save him. After attempting to perform the Heimlich maneuver unsuccessfully, the unfortunate person dies. If the family of the deceased attempts, for some reason, to take legal action against the would-be rescuer, his status will come into play. If the rescuer is a normal person, he will possess only a rudimentary level of medical knowledge and a court will recognize this and would be more likely to view the death as an unfortunate accident. However, if the rescuer is a physician, he possesses a level of knowledge beyond that of an average individual. Courts see this and may potentially find that he used his abilities improperly and caused unnecessary harm. The physician may very well have made a good faith effort, however the point is that his extra knowledge will still be factored into the court's analysis. Likewise, if a person defending himself breaks his attacker's arm as a result of self-defense, the court will look at this defense differently if the person is a student of the martial arts. He or she will have more knowledge as to how to harm a person effectively. If it is found that he acted negligently in light of his skills then the courts will find him liable.
In addition to it being necessary for a martial arts student to be aware of how the law works, it is necessary for the instructor/sensei to be aware of his/her role as well. In the law there is a theory known as respondeat superior. This is a term meaning "let the employer be liable." It allows a person who takes legal action against another to sue the defendant's master/employer. The theory behind this is that the individual who caused the harm would not likely have caused it had he not been fulfilling some duty for or performing some skill learned from the master/employer.
The doctrine of respondeat superior is limited to actions that are what the legal realm calls "the scope of employment." Therefore, the master can only be punished for his student/employee's actions when he commits actions that are for the benefit of the master. For example, if a mailman accidentally hits another driver with his truck while delivery mail then he is within the scope of employment because he committed the act while utilizing skills taught to him and for the benefit of the master. Conversely, if a restaurant chef stabs a customer with a knife while cooking then he is not within the scope of employment due to stabbing a customer not being a part of his normal work routine. Additionally, the former is foreseeable by the master due to the vehicular nature of the work while the latter stabbing is not foreseeable due to its randomness. Since a sensei teaches his or her student to use martial arts in self-defense, if the student uses these skills in this manner and is found to have used them improperly, then the sensei may face legal consequences as well. This is foreseeable because a sensei expects the student to use these skills if presented with a situation. While misuse of martial arts by its students is not often encouraged, it is foreseeable.
This paper is by no means an exhaustive source on all laws applicable to every aspect of the study of martial arts. It is a good starting point and attempts to cover many of the core ideas and general rules. Through this examination of how the law treats martial artists, we are left with two major concepts. First, the area of self-defense is multifaceted. However, the most important concepts in this huge area of the law are "consent" and "proportionality." Consent is important for any practitioner to understand so that they can engage in the art safely and respectfully. The concept of proportionality governs when and what level of force is appropriate and applicable. Secondly, it is also important to remember that having the privilege of being in possession of martial arts skills places a burden on both the student and the sensei to exercise greater care than the average individual in their situations. The law governing martial arts is massive and it is extremely difficult to keep oneself apprised of all rules and trends. However, complete knowledge of the law is no replacement for a little bit of prudence and respect when dealing with the study of martial arts. Any martial arts student who becomes aware of how the law affects him or her comes to realize why his or her art so often stresses the importance of discipline, control and responsibility.
- Brown, Carl, The Law and Martial Arts. Ohara Publications. Santa Clarita, CA. 1998
- Kaplan, John, Robert Weisberg and Guyora Binder, Criminal Law: Cases and Materials. Fourth Edition. Aspen Publishers. New York, NY. 2000
- Dobbs, Dan B. and Paul T. Hayden, Torts and Compensation: Personal Accountability and Social Responsibility for Injury. Fourth Edition. WEST Group. St. Paul, MN. 2001
- Federal Rules of Civil Procedure: Abridged Edition. As Amended to May 23, 2003. WEST Group. 2003.