Effective aggressiveness and inconsistencies in the bijuridical treatment of aggressive behaviour: mixed martial arts, bullying, and sociolegal quandaries.

AuthorRoss, Sara Gwendolyn

One of the most legally restricted elements of human nature is that of aggression and the intent to harm. ** Yet in combat sports such as mixed-martial arts ("MMA") or boxing, one of the key elements in judging a fighter's performance to determine a winner is "effective aggressiveness". MMA used to be characterized by the pitting of various styles of martial arts against each other in order to determine the dominant form. Its current practice now focuses on the dominant fighter where each fighter deploys an individually hybridized fighting technique drawing on various martial arts. (1)

This paper seeks to address effective aggressiveness and the treatment of aggressive behaviour in the context of MMA in comparison to the balance of the formal Canadian legal landscape. I choose anti-bullying legislation, and its treatment of aggressive behaviour, as a counterexample to the treatment of aggressive behaviour within the MMA regulatory framework. By intertextually linking and superimposing these two categories of legislation, a critical lens drawing on institutional ethnography is applied. This is done to question and deconstruct the differential treatment of aggressive behaviour and the rationale behind the legislative mixed message sent. This lens also allows me to show the importance of a more thorough analysis and understanding of the imported internal frameworks of regulated activities that are candidates for decriminalization through amendments to Canada's Criminal Code intended to ensure the Criminal Code is current to today's reality. (2) The quandary faced within the fabric of the MMA community regarding its own treatment of aggressive behaviour, where it is both reified as well as castigated through anti-bullying advocacy, will also be examined.

  1. Theoretical Framework

    This paper adopts a critical approach inspired by the methodology of institutional ethnography. (3) Two categories of legislation of have been intertextually linked by mapping the MMA community/cultural normative system. These two categories of legislation have been superimposed, then teased apart, in order to reveal a conflicting treatment of aggressive behaviour that sends a mixed message to the Canadian public. The point of this exercise is to explore how this inconsistent treatment may play out within the cultural milieu of Canadian children, youth, and young adults; how it arose in terms of the different actors and communities involved; and the rationale behind the differential treatment of aggression in different contexts. I also draw on the work of Brian Tamanaha in order to define, understand, and conceptualize MMA as both a social phenomenon and a community with grassroots elements and internal norms that interact in a legally pluralistic manner with the relevant dominant legal framework. (4)

    For the purposes of this article, I accept the existence of regulated violence as settled law and as anterior to the subject of this article in order to build off this reality. Instead, I narrow in on generating a critical discussion of the treatment, mandating, and language surrounding aggression and aggressive behaviour as it appears in Canadian law and legislation, which is separate from a discussion of criminal or civil liability and the defence of consent. However, for further investigation into these issues, even though the literature on MMA is still developing, there is nonetheless a body of literature pertaining to boxing and the law. For example, The Legality of Boxing: A Punch Drunk Love? touches on a discussion of consent. (5) In addition, there is readily available general literature on consent and the law in sport and extreme sports provided by, for example, Essentials of Sports Law. (6)

  2. The Mechanics of Regulation

    (A) The Unified Rules of Mixed Martial Arts

    The Unified Rules of Mixed Martial Arts ("Unified Rules"), first codified by the New Jersey State Athletic Control Board in 2000 and adopted in April 2001, address the mechanics of a match and fighter safety precautions. (7) The Unified Rules grew out of the efforts of the United Fighting Championship ("UFC") and other MMA event promoters to develop and apply an internal set of rules in order to respond to concerns regarding the health and safety of MMA participants. (8) Nevada's MMA rules and regulations, which incorporate the Unified Rules, are the model usually followed by most jurisdictions. As such, when a jurisdiction lists that it is adopting the Nevada regulatory model, it is implicit that the Unified Rules are also implemented into the regulatory scheme. (9)

    (B) Decriminalization

    In Canada the regulation of MMA is delegated, depending on the province in question, to the provincial or municipal body or agency, usually the athletic commission, responsible for overseeing athletics-related policy. (10) The recent decriminalization of MMA has altered the regulatory landscape in Canada. While MMA events have been held in Canada for quite a while, their legal status was ambiguous due to the prize fighting provisions in the Criminal Code. (11) Section 83 used to prohibit combative sporting competitions if they fell under the Section 83(2) definition of "prize- fight". (12) MMA theoretically fell under this definition. (13)

    Flowever, there were two exceptions to this prohibition: (1) amateur boxing events; and (2) any boxing event sanctioned by a province's designated athletics-related regulatory body, or any bout where the boxing gloves worn by fighters were not less 140 grams. (14) A pervasive uncertainty existed throughout the country as to whether or not MMA fell under the exception or not, and it was ultimately left open to the interpretation of each province. As such, while Section 83 of the Criminal Code theoretically "prohibited" MMA events, it was nonetheless possible for provinces to sanction MMA events if the prize-fighting exceptions were interpreted in such a way as to include MMA. (15)

    Ontario, for example, lifted its ban on MMA events in 2010 for a number of reasons including the projected lucrative financial benefits linked to the growing popularity of MM A in Canada. The Ontario government predicted that around 30,000 people could be attracted to an MMA event--which, it proposed, would generate approximately $6 million in associated economic activity within Ontario.16 In addition to these reasons for the decision to remove the ban, the grassroots quest for legitimacy sought by the MMA community/cultural normative system through the absorption and recognition of its internal rules and regulations, especially the Unified Rules, played an important role. (17) Other provinces took another approach to the federal MMA prohibition in order to respond to the growing public demand for MMA while capitalizing on the financial incentives MMA yielded. Quebec, for example, sidestepped federal prize-fighting provisions by renaming MMA as "mixed boxing" so that MMA regulation fell under the category of boxing.

    All of this changed in June 2013 with the passing of Bill S-209.18 This bill amended the prize-fighting provisions in the Criminal Code by extending the existing Section 83 exemptions and cleared up confusion as to whether or not MMA in fact fell under the previous exemption. (19) The amendments make MMA events legal across Canada as long as they meet the new stipulations under Section 83(2) where legality is conditional upon provincial or municipal regulation. Turning back to the prior provincial examples, the Athletic Commissioner of Ontario now has the unquestionable authority to sanction MMA events, and Quebec has no more need to sidestep the Criminal Code provisions against MMA by renaming it "mixed boxing", although changes to Quebec's mixed boxing regulations have yet to be made. (20)

    (C) The Unified Rules in Canada and the Quebec Exception

    Within Canada, the Unified Rules have been implemented into the relevant legislative frameworks in sanctioning jurisdictions, such as within Ontario's Athletics Control Act. (21) Quebec is an exception. Not only has Quebec not incorporated the Unified Rules, but its sanctioning legislation overseeing MMA never uses the term "mixed-martial arts". (22) Instead, MMA in Quebec remains sanctioned and referred to under the term "mixed boxing", which is defined as: "[A] combat sport during which contestants of the same sex fight standing or on the mat; when they fight standing, the contestants use kickboxing techniques unless modified in this Chapter; when they fight on the mat, the only permitted submission techniques are those described in this Chapter.". (23) This section describes the elements of MMA, from permissible striking, to grappling, to permissible take downs, to acceptable "ground and pound" and holds, (24) as well as the construction and measurement specifications of the octagonal ring. (25)

    (D) The Reasons behind Decriminalization

    Legalization has occurred in large part due to lobbying efforts by the MMA community. Not only has the UFC been active in this enterprise, but vocal fans of the sport have been prolific in their awareness-raising efforts regarding the legal and political challenges faced by MMA in Canada. (26) As stated right before Bill S- 209 was passed: "MMA has established its seat at the main table of major sports in North America. It is an example of how a new and emerging sport, through its grass root popularity, can influence policy making and legislation." (27) Popularity not only increases core and peripheral MMA participation and increasingly positive views of the sport, but it also yields lucrative economic results. (28) Legalization was also influenced by the rationale that greater regulation leads to better protection of MMA participants. (29) Increased ability to regulate post-decriminalization enables the implementation of safety standards and, it is hoped, reduces the attraction of unregulated underground events. (30)

    Regulation also enables the establishment and...

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