## Facts

- Jason P. Shelley and Mario Gonzalez played opposing sides in unrefereed pickup basketball games at the University of Washington IMA.
- Players self-called fouls; Gonzalez had a reputation for aggressive defense and fouled Shelley several times.
- Gonzalez scratched Shelley’s face during play, drawing blood; Shelley briefly left and later returned to the game.
- Shortly thereafter, Shelley struck Gonzalez in the face with his fist.
- Gonzalez’s jaw fractured in three places, requiring emergency surgery and wiring; medical testimony characterized the blow as significant.
- Shelley’s written statement described escalating anger and that the scratch was the “final straw”; while running side by side he swung and hit Gonzalez.
- Shelley was charged and convicted by a jury of second-degree assault based on an intentional punch.
- Shelley did not pursue a self-defense theory; he sought to argue that Gonzalez consented to the risk of injury by participating in a rough pickup game.
- The trial court rejected consent as a defense on these facts and entered judgment; Shelley appealed.

## Issues

1. Whether consent is available as a defense to a criminal assault charge arising from conduct during an athletic contest.
2. Whether implied consent from participating in a rough, informal basketball game includes the risk of an intentional punch to the face causing severe injury.
3. Whether Washington’s second-degree assault statute is unconstitutionally vague as applied to an intentional punch delivered in a sports setting.

## Decision

- The Court of Appeals affirmed the second-degree assault conviction.
- The court held that consent may be a defense to assault in athletic competition in principle.
- The court held Shelley failed to establish a factual basis that Gonzalez consented to Shelley’s conduct and the resulting harm.
- The court concluded an intentional punch to the face causing a jaw fractured in multiple places was not a reasonably foreseeable hazard of participating in pickup basketball.
- The court rejected the as-applied vagueness challenge, finding the statute gave adequate notice that Shelley’s conduct was criminal.

## Legal Principles

- Consent can negate criminal assault liability in the context of athletic competition, but only within defined limits.
- In sports, implied consent extends to conduct and harm that are the reasonably foreseeable hazards of joint participation in the contest.
- The scope of implied consent is not confined to acts that comply with the sport’s formal rules; it turns on foreseeability of the conduct and harm in the circumstances.
- A retaliatory or anger-driven act of violence that is outside foreseeable play-related risks is not covered by implied consent and may support an assault conviction.
- An assault statute is not vague as applied where the charged conduct falls within the statute’s core prohibition and provides ordinary notice of criminality.

## Conclusion

The court affirmed Shelley’s second-degree assault conviction, holding that while athletes may impliedly consent to foreseeable risks of play, that consent does not cover a retaliatory, intentional punch to the face causing severe injury, and the assault statute was sufficiently clear as applied to that conduct.


State v. Shelley, 85 Wn. App. 24, 929 P.2d 489 (Wash. Ct. App. 1997)