May 2013 Bar Bulletin
 
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May 2013 Bar Bulletin

Dueling and the Law of Mutual Combat

By Athan E. Tramountanas

 

"I challenge you to a duel" evokes a gentlemanly image of slapping your opponent with a white glove and settling your differences with pistols at dawn. Most famously, Vice President Aaron Burr fatally wounded Treasury Secretary Alexander Hamilton on the Weehawken Heights on July 11, 1804. Hamilton was immortalized on the $10 bill; Burr was demonized.

More profane versions of the phrase evoke gun fights at the OK Corral and bar patrons agreeing to "take it outside." Most recently, Seattle "superhero" Phoenix Jones fought an aggressor while local police looked on (of course, this was caught on video and posted on YouTube).

The principle remains the same: two participants freely agreeing to enter into a physical altercation. This article discusses the law of mutual combat in Washington, tracing its history back to the laws of dueling.

Washington first outlawed dueling during its days as a territory.1 Under these older laws, dueling with a deadly weapon by mutual agreement, when no death ensued, was punishable by up to 10 years in prison (murder charges would apply if a death did ensue). There were lesser punishments for making or accepting a challenge to duel, or to aid the duel taking place by knowingly carrying or delivering a challenge to another party.

Dueling statutes stayed on the books, most recently as RCW ch. 9.30, until they were repealed with the passage of the Washington Criminal Code.2 The only reference to dueling in current state law is in the context of state military justice, applicable to members of the Washington State Guard. Under RCW 38.38.768, a party involved in dueling in any way "shall be punished as a court martial may direct."

While they don't expressly mention dueling, city ordinances may apply to consensual physical altercations. For example, in Seattle it is unlawful for people to fight in a public place and thereby create a "substantial risk" of injury to a person not involved in the fight or damage to property belonging to a person not actively involved in the fight.3 In Bellevue and Kent, it is a misdemeanor to provoke, by "word, sign, or gesture," another person into committing an assault, which would likely include challenging someone to a duel.4 In Kent, it is also a misdemeanor to use abusive language, thereby intentionally creating a risk of assault.5

This list is only meant to be illustrative and is not complete. Most of the law around duels or mutual fights, historic and contemporary, has developed in the courts. Interesting case law has developed in both criminal and civil contexts.

Criminal Law - An Issue of Consent


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