Wednesday, October 29, 2014

Domestic violence: Is horseplay a defense?

Pssst: Do you know how a man can hit his girlfriend without being charged with domestic violence? Read this.

A Filipino police officer in Honolulu was recently shown in a videotape distributed to television stations apparently hitting with his fists his attractive Caucasian girlfriend in a restaurant kitchen. Police officers who responded to a 911 call did not file a police report.
 
The police department did not file charges against the Filipino thus raising an uproar in the community. The department referred the matter to the city prosecutor. He did not file charges and instead referred it to a grand jury for investigation. I do not agree with those who call it “punting” (an idiomatic expression for avoiding making a decision) since the prosecutor could defend his action that it was a way to issue grand jury subpoenas to reluctant or uncooperative witnesses so that he could compel them to testify under oath exactly what they saw and heard as the events on the videotape unfolded. The grand jury did not indict the officer. Some jokesters called it “Coddling C_ _ _ _ _ _” [that is the first letter of the officer’s surname] or “Cuddling C_ _ _ _ _ _”. That does not seem fair, does it, if you read further and learn all the facts.

Those who came to the defense of the Filipino officer said that he and his girlfriend (now ex) were merely engaged in “horseplay”. Don’t be naughty. That has nothing to do with “foreplay”. Or does it?  “Horseplay” means, among others, fooling around, clowning, horsing around, monkey business, tomfoolery, or rough and energetic playful activity.  Horseplay is as old as, well, horses. If you have seen horses engaged in horseplay, it can be very rough.

The girlfriend did not file any charges. She had herself medically examined and there were no bruises or other injuries.

It appears that the videotape clip shown on television did not portray the complete picture of what happened. The police department released the entire videotape. According to those who saw the “complete” videotape, the girlfriend seemed to have started the incident by apparently hitting the Filipino on the head. The Filipino’s punches did not cause injury.

Horseplay has been considered as a defense in some assault cases. Domestic violence is a form of assault. Consent is a defense to what would otherwise be considered an assault. Consent may be express or implied. Thus, horseplay is a defense where the alleged victim consented to the risk of harm, expressly or impliedly. Similarly, in a boxing bout, the boxers give their consent to be hit by the opponent. Consequently, if a boxer hits his opponent on any part of his body and plays by the rules, the one who hit the other will not be charged with assault. In other sporting activities, consent is expressly or impliedly given by a player to be hit by another player. In other words, players may waive any claim for injury arising from playing the sport provided the one causing the injury plays by the rules and does not intentionally cause injury. However, if a player does not abide by the rules or intentionally causes harm, the perpetrator cannot invoke consent as a defense. A timely example is in the game of baseball, since the World Series is on. (We are cheering for the San Francisco Giants of course). In a baseball game a batter is sometimes hit by a pitched ball unintentionally. The batter gets angry and intentionally attacks and hits the pitcher in the head and other parts of the body with a bat until the pitcher dies. The batter cannot successfully argue that the pitcher consented to be attacked if he hits a batter on the theory that it is part of the game. Hitting the pitcher with a bat is not part of the game. Players do not give their consent to an assault that is not part of the game.

OBSERVATION: Magaling magpalusot ang Pilipino. Agbiag


(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)

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