ABSTRACT
The courts have often stated that the contacts made between athletes during participation in sporting activities deserve special treatment by the law in order to preserve sport’s many benefi cial characteristics. The diffi culty faced by athletes, 1 sports administrators and the criminal justice system is that despite the longevity of this exceptional position, the scope of the partial exemption provided to interpersonal sporting contacts remains unclear. Consensual conduct has been defi ned by reference to sports’ rules and customs, the foreseeability of injury, the degree of harm caused, its acceptability to those involved with the game and the availability of sporting-disciplinary sanctions against the perpetrator. This uncertainty is caused by the lack of appellate level direction on the defi nition of consent in sport, which is compounded by contradictory public policy approaches and the many obiter dicta statements made by the judiciary about sport when discussing consent in other contexts. This chapter provides original insight into the evolution of the sporting exemption through its analysis of the problems caused by this lack of defi nitional precision. By examining the tests that have been proposed by the courts over the last 150 years and the impact that these have had on the relationships between athletes, the governing bodies of sport, the prosecuting authorities and the criminal law, a model for analysing sporting consent is proposed.
