But Is It A Crime?

The ongoing criminal investigation by British Columbia prosecutors into Bruin Marty McSorley's stick attack against the Canucks' Donald Brashear (SCORECARD, March 6) again raises the question of whether sports violence should be treated as a crime. McSorley certainly deserves the NHL's punishment—a 23-game suspension that will cost him $72,000 in salary—for his outrageous violation of the league's rules and its norms. But should the case end up in criminal court?

In a technical sense, much of what we see on the ice, on the hardwood, on the diamond, on the field and in the ring constitutes criminally assaultive behavior. Any unconsented-to touching is, as a matter of pure law, a criminal assault, and no one but a masochist consents to being clobbered. Athletes, however, implicitly agree to the possibility of being touched, hit and even mauled, so long as the contact is within the rules of the sport. No hockey player has the right to file a complaint about a hard check. No basketball player can call the cops over a flagrant foul. No baseball player can sue if he's bowled over in a collision at the plate.

But beyond the rules, there are norms to consider. In hockey, fighting is expected. No hockey player, however, expects to be blindsided by a stick to the head with 2.7 seconds remaining and his team up by three goals. Such an attack is more like the one by the college pitcher who threw at an opponent in the on-deck circle.

McSorley's case is close to the line between criminal and merely suspendable conduct. It was an extension of behavior well within the norm of pro hockey. The clear examples of criminal conduct differ in kind, not only in degree, from acceptable conduct. McSorley's outrageous act is different only in degree, though the degree is considerable—especially because it was not done in an overzealous effort to win the game.

There's added concern when the criminal investigation is pursued against a visiting player. Would there have been as much ardor for an investigation in Vancouver had a Canuck attacked a Bruin? Finally, before a case escalates into the criminal courts, there ought to be fair warning in the form of clear statutes that define the sorts of sports violence deemed to be criminal. On balance, this seems like a case for harsh punishment by the NHL but not for criminal prosecution.