(July 19, 2018) On July 10, 2018, the Supreme Court of Sweden handed down a judgment that sets limits for what violent actions may be deemed “consented to” as part of an ice hockey game. (Högsta Domstolen [Supreme Court] Case No B 4888-17, July 10, 2017, Supreme Court website.) The issue in the case was whether a player can be criminally liable for an injury caused in the course of an ice hockey game, or if the injury is covered by prior consent of the participants. (Id. at ¶ 1.)
During a professional ice hockey playoff game in Sweden in March 2015, one player cross-checked another in the back and then again in the unprotected back of his neck. (10 Matcher för Jakob Lilja, HOCKEY ALLSVENSKAN (last visited July 13, 2018); Supreme Court Case No B 4888-17, §§ 2–3.) The injured player was taken off the ice on a stretcher but was not seriously hurt. (Swedish Ice Hockey Star Faces Assault Charge over Fight During Game, LOCAL.SE (Jan. 31, 2017).) The incident was reported to the Svenska Ishockeyförbundets disciplinnämnd [Swedish Ice Hockey Association Disciplinary Board (hereinafter the Disciplinary Committee)], which concluded that the incident was not connected to the game and banned the aggressor from participating in 10 consecutive games. (10 Matcher för Jakob Lilja, supra; Supreme Court Case No B 4888-17, § 3.) The Disciplinary Committee determined that the cross-check “occurred outside of the game and was completely unnecessary and disrespectful. Hitting someone hard against the unprotected part of the neck is associated with a great risk of serious injury. Any other penalty than a severe suspension is unthinkable.” (10 Matcher för Jakob Lilja, supra (all translations by author).) In its choice of punishment the Disciplinary Committee considered that the accused had previously been reported to the Disciplinary Committee for a “considerably less serious violation.” (Id.) The accused thus received a 10-game suspension (four converted into a monetary fine as per custom). (Id.)
Separately, following the sentence from the Disciplinary Committee, the District Court determined that the accused’s actions constituted assault (id. at ¶ 4), a decision that was reaffirmed by the Appellate Court (id.). The Supreme Court then heard the case on appeal by the accused.
Theory of Social Adequacy—Consent to Injury in Sports
Consent to a violent act may make an otherwise criminal act permissible under Swedish law. The Criminal Code provides the written exceptions for when an action can be considered covered (and allowed) by the victim’s consent. The section that typically is interpreted to mean that any injury caused during play is not a criminal act states, “[a]n act that someone commits with the consent of the person against whom the act is done is a crime only if the act, considering the injury, violation, or danger that it carries, its purpose and other circumstances, is indefensible.” (24 kap. 7 § BROTTSBALKEN [BrB] [CRIMINAL CODE], Swedish Parliament website.)
In addition to the exception for liability found in 24 kap. 7 § BrB, Sweden employs a theory of social adequacy (social adekvans), an unwritten rule that makes violence excusable in certain cases, such as in the circumcision of boys for religious reasons. (See Supreme Court case, Nytt Juridiskt Arkiv [NJA] [Supreme Court Reports] 1997 s. 636.) According to the Supreme Court, the common factor in cases where an act is permissible under the theory of social adequacy is society’s interest in allowing the act. (Supreme Court Case No B 4888-17, ¶ 10.)
Typically actions performed in sports, which at any other time would be considered assaults, are permitted with reference to 24 kap. 7 § BrB and the theory of social adekvans. (Id. ¶ 17.) This means that not only are any actions that are permissible in a sport excused, but also impermissible actions, actions that lead to a “penalty” during the game, are also permissible. (Id. ¶ 18.) Provided that the assault is “within the framework of the game,” the act is considered acceptable or “adequate,” even if the injured party did not consent to the particular action or injury. (Id. ¶ 19.) The Supreme Court has previously determined that schoolyard fights are covered by this theory. (Skolgårdsbråket [Schoolyard Fight] NJA 1993 s. 553; NJA 1997 s. 636, ¶ 21.)
Actions Not Protected by Social Adequacy
The Supreme Court determined that a serious injury inflicted with intent by the assaulter can never be seen as falling within the framework of the game. (Supreme Court Case No B 4888-17, ¶ 24.) In this case the injury inflicted was not allowed in accordance with ice hockey rules and the injured could not have consented to it. (Id. ¶ 28.) The court did not address the fact that the injured player announced in the district court proceedings that he was not interested in pressing charges and that he would rather leave the courthouse to get back to hockey practice. (Martin Tolén & Stefan Alfelt, Bad om att få lämna rättegången mot Lilja, AFTONBLADET (Mar. 16, 2017).)
The lower court, the District Court of Malmö, in its original decision noted that
[t]he assault that JL perpetrated on JO is not permitted in ice hockey rules. In addition, the assault violates the idea of the game. Moreover, taking the idea of the game into consideration, it cannot be deemed to be a permitted valid risk by JL, especially considering that the ice hockey puck was some six to eight meters away [from the injured player] when the [assault] was made. Thus, JL’s action goes beyond what is covered by the general consent to violence that JO has consented to by participating in the game. It is obvious that JL knew this. (Åklagarmyndigheten, ÅM 2017/7713, Feb. 2, 2018, Swedish Prosecution Authority website (translation by author).)
Sentencing – No Double Monetary Punishment
Overturning a decision on the issuing of monetary fines by the lower and appellate courts, the Supreme Court found that no monetary fine should be awarded, despite otherwise being customary in cases like this, because of the fine imposed by the Disciplinary Committee. (Supreme Court Case No B 4888-17, ¶¶ 4, 34.) In addition, a prison sentence was considered unwarranted and the accused received a one-month probation sentence, meaning that the assault carried a penal value of one month’s imprisonment.