When Is Hockey Violence Illegal?

Roughhousing versus assault.

Todd Bertuzzi
Bertuzzi: Thug?

The National Hockey League has suspended Vancouver Canucks forward Todd Bertuzzi for the remainder of the season and the playoffs as punishment for his vicious thumping of Colorado Avalanche forward Steve Moore. In addition, Vancouver police are investigating the incident, and criminal charges could be filed. Given that the law generally frowns upon the clobbering of human beings, isn’t all hockey violence illegal?

Perhaps in a technical sense, but prosecutors would have a tough time obtaining convictions in the vast majority of cases. There’s no law that specifically exempts athletes from being prosecuted for assaults that occur during competition, so it’s theoretically possible that a prosecutor could file charges every time a winger gets cross-checked or sucker punched. However, there’s a gentleman’s agreement of sorts that exists between professional sports leagues and the authorities: As long as the NHL polices itself, and metes out fines and suspensions to offenders, prosecutors generally leave it alone.

Both sides prefer it that way: the NHL because it doesn’t want the courts interfering with its business, and prosecutors because guilty verdicts would be few and far between. “Implied consent” is an accepted defense against assault charges, and it’s clear that NHL players realize that serious roughhousing is part of their job. Many simple assault cases also depend on the willingness of victims to press charges, and few if any pro hockey players want to carry their on-ice feuds into the courts.

But prosecutors have broad discretion to bring charges against athletes, and they’ll do so if they think that a violent incident went beyond the pale—especially if they feel they can prove that the victim didn’t consent to the level of violence he was subjected to. Canadian crown attorneys, in particular, have been willing to prosecute egregious cases of NHL thuggery, possibly because the sport’s integrity is so vital to the national identity. In 1988, for example, Minnesota North Stars forward Dino Ciccarelli pleaded guilty to assault charges in Toronto for slashing Maple Leafs defenseman Luke Richardson in the head; he was jailed for one day. And in 2000, Boston Bruins enforcer Marty McSorley was convicted of a similar crime in Vancouver and sentenced to 18 months probation.

In deciding whether to pursue a criminal case, prosecutors consider a variety of factors: premeditation, the degree of viciousness, and whether there was intent to injure. Though few professional athletes are prosecuted, criminal charges are more common on the amateur level, where violence is less accepted. One landmark case followed a 1999 incident during a high-school hockey game in which a brutal body check resulted in one boy’s paralysis. The juvenile antagonist pleaded no contest to a misdemeanor aggravated battery charge and received probation. Had a similar incident occurred during an NHL game, it’s questionable whether charges would have been filed—a pro implicitly consents to taking a lot more lumps than an amateur, so the case would likely have been a loser for the prosecution.

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