What Exactly Is Mutual Combat?
The most common definition of mutual combat is that of Black’s Law Dictionary, which states that mutual combat is "…an agreement between two or more persons to fight or to do an act of violence to each other."
We also commonly see mutual combat as espoused by the Illinois Criminal Jury Instructions from the Illinois Principle Review Committee. They state, "The term [mutual] combat means an intentional and unlawful fighting. A fight is the conscious intent to collide with another person. It does not mean [a] fight in defense of one’s self or another or in defense of one’s property or while making a lawful arrest."
Illinois law goes on to say that , "A person cannot claim self-defense if the person was the initial aggressor or sought out the altercation." (See 720 ILCS 5/7-4.) The law further notes, "The aggressor is not entitled to claim the use of force against the other until he has withdrawn from the encounter and effectively communicated to the other his intention to do so — without the use or threatened use of force." (See 720 ILCS 5/7-4.)
As with many legal areas, there are many nuances and caveats that apply as well. We will go into more detail in the later sections.
Legal Precedents for Mutual Combat in Illinois
Legal Background of Mutual Combat in Illinois
Mutual combat law in Illinois has undergone several changes over the years. The second paragraph of the Illinois Compiled Statutes on "Justifiable Use of Force," 720 ILCS 5/7-1, formerly required a person to retreat from mutual combat before using deadly force. The statute was amended in 1971 to read: The right of a person to use force, other than deadly force, is not eliminated if the person doing the resisting has initially provoked the use of force against himself or herself. But this Section does not authorize the use of force if the person claiming a right to act under this Section is engaged in mutual combat at the time the force is used. A simple way to understand what the Illinois legislature was getting at is that unless both parties mutually consent to fighting – such as boxing in an organized or unsanctioned matter – there can be no consent to use deadly force. Which would seem to make sense intuitively. But the amendment left the door open to other forms of mutual fighting without a clear standard, as shown by recent cases. In 2014, the Third District Court of Appeals decided People v. Rivera, 2014 IL App (3d) 110270. The defendant, a 35-year-old male, and the victim, who was 17, were both members of rival gangs who made contact with each other. They agreed to settle issues related to their respective gangs by removing their shirts and fighting "to teach [the victim] a lesson." The defendant struck the victim several times. The victim then took a switchblade knife out of his pants pocket and struck the defendant in the neck, cutting through the carotid artery and causing the defendant’s death. In determining whether the victim was justified in stabbing the defendant, the court looked at the legislative intent behind the statute, which is to "ban mutual combat and its concomitant hazards" in order to restore the value of human life in the state. The court noted that "the statute protects the person who is not the initial aggressor from death or great bodily harm. Indeed, this case makes plain that involuntary injury is not always death or great bodily harm." (Citations omitted.) The court ultimately found that since the victim was the one who broached mutual combat, but not the one who initiated the aggression, he was protected by the statute. Though interestingly, the court elected not to address whether Illinois’ self-defense provisions that are codified in the Self-Defense Act would instead have applied to the victim. In 2019, the Fourth District Court of Appeals in People v. Wright, 2019 IL App (4th) 170663, addressed a case in which two men engaged in mutual combat that led to one stabbing the other with a knife. The court noted that the defendant stabbed Wright in order to avoid great harm or death, thus concluding that the defendant acted justifiably in self-defense. Following a discussion of the legislative history of the relevant statutes, the court went on to state: It is also clear that, in Illinois, there is no statutory provision barring a person from engaging in mutual combat in self-defense situations. While engaging in mutual combat may be illegal in Illinois, that prohibition does not apply to self-defense cases. Mutual combat does not impact whether the defendant was justified in using self-defense in this case. In other words, even if engaging in mutual combat is illegal, a person may still invoke self-defense in a justifiable use of force case in connection with mutual combat. In Wright, the court did not directly rule that Wright had acted justifiably in self-defense because the defendant was found not guilty of other crimes besides justifiable use of force. As a result, the court expressed no opinion on whether Wright’s actions were justifiable or not. Recent Illinois cases indicate that although mutual combat may be illegal, as in Rivera, that does not necessarily preclude a person from acting justifiably in self-defense within the context of mutual combat. Many questions remain as to how courts across the state will address a fact pattern like that in Rivera or in Wright, and whether different results would be reached in different Illinois circuit and appellate court districts. Further complicating matters is the fact that the Code’s definition of justifiable use of force is not thought of as a codification of the common law, where judges rely upon precedent in deciding cases. Rather, the statutory law is additive to the common law. 720 ILCS 5/7-1(a). This suggests that reasonable minds may differ on what exactly constitutes acceptable defenses in cases that involve mutual combat in the State of Illinois. At a minimum, the above cases underscore that whether a person engages in mutual combat cannot be used against them if that person’ defense argument is that they acted justifiably in self-defense and were justified in their use of deadly force during legal combat.
Latest Laws on Mutual Combat in Illinois
In Illinois, mutual combat is a defense that has gained some notoriety in the context of aggravated battery and self-defense claims. However, mutual combat is not an affirmative defense under the law. This means that it cannot be used against a defendant without evidence from the State that the defendant agreed to fight.
Notably, Illinois law states:
Sec. 7-7: This article does not apply to the use of force when the actor is:
(a) Justified in using force as provided in Section 7-1 through Section 7-6; (Defensive Force); or otherwise authorized by law to use such force;
(b) Involved in mutual combat and agrees to the conduct that is otherwise an offense.
(2) Defense: a person is not justified in the use of force when:
…
(b) That person is the initial aggressor, except when:
(2) he/she withdraws and effectively communicates to the other person his/her intent to do so; and the other person continues or threatens to continue the unlawful force;
However, under Illinois law there is no definition of mutual combat. In its absence, Illinois courts have addressed this issue on a case-by-case basis. In People v. Martinez, 2023 IL App (4th) 210250, the defendant attempted to argue that the complaining witness was the initial aggressor, but the defendant did not establish that they had engaged in mutual combat, which was the basis for rejecting his argument.
Consequently, Illinois courts have determined that two people engaging in an unwilling mutual agreement to engage in a physical confrontation does not constitute mutual combat. In determining whether an initial aggressor instruction is warranted, a court will look at whether there was an act of unprovoked aggression or attack by the defendant.
Cases of Mutual Combat in Illinois
The application of mutual combat law in Illinois has created a number of intriguing case studies. In 1982, the case of People v. Scott (104 Ill. App.3d 1, 433 N.E.2d 931) addressed the issue of mutual combat in the context of a brawl that erupted in a bar. The defendants were two men who engaged in an altercation with others in the establishment. The court ruled that the evidence demonstrated mutual consent. In upholding the defendants’ conviction for aggravated battery against a peace officer, it was determined that while they could have withdrawn from the fight, they did not do so and the later indictment was sufficient to establish their intention to harm. However, the court also observed that justification would have been available as a defense if the injured officer had assaulted the defendant before he fought back.
In the 2011 case of People v. Shaw (102 Ill. App.3d No. 4-09-0411, 2011), the issue of mutual combat was again brought to the forefront of legal proceedings. A defendant charged with aggravated battery was acquitted of that charge after the trial court found mutual combat between the defendant and the complaining witness. Upon being interviewed by police, the victim stated that he had been drinking at the bar and that he had pushed the defendant, but it was his friend that had punched the defendant first. The court concluded that the complaining witness’ testimony established unlawful force by the defendant, but that he had not established that the level of force used by the defendant was reasonable.
Illinois law takes a very firm stance against mutual combat. If both parties agree to engage in a fight and one causes serious bodily injury to the other, that party will be violating mutual combat law by their action. Therefore, every criminal defense firm in Chicago thoroughly examines circumstances involving mutual combat in any form, whether in a private residence, on a public street, or at a location open to the public.
Legal consequences of Mutual Combat
The legal implications for someone involved in mutual combat in Illinois is two-fold. First, there may not be criminal consequences as law enforcement and prosecutors may determine that they do not have sufficient evidence to prove beyond a reasonable doubt that the self-defense claim or the claim of mutual combat is invalid. This will often depend on what the police officer saw in the initial confrontation, the behavior of each party, and whether the complainant and the suspect have a prior relationship.
Second, proving an affirmative defense of mutual combat is a legal process which may have a very different outcome. This often occurs in terms of criminal law: the standard for conviction is proof beyond a reasonable doubt, but proving an affirmative defense of self-defense or justifiable use of force is a much lower burden of proof and requires only preponderance of the evidence . If the accused can prove their case, the charges against them will be dismissed, which is a much better result for them than being found guilty under a beyond reasonable doubt standard.
As a practical matter, mutual combat should not be relied upon as a legal defense to a physical fight were you are charged with a crime, as the standard for convicting you is markedly lower than that for acquitting you on that same basis. It is a rare case where authorities, even if the evidence is clear that both parties were equally to blame with regard to who threw the first punch, will not seek to punish both for fighting in the street (even if it was, as a legal matter, consensual), since that is often the only recourse they have to control a situation where the combatants do not want to see each other held accountable for unsportsmanlike behavior.
Mutual Combat and Self Defense
It is important to understand that while mutual combat and self-defense are similar in some respects, they are, at their core, different concepts. Mutual combat does not give rise to a self-defense claim in Illinois. Illinois law provides that in a case of mutual combat (that is, an altercation that both sides voluntarily enter into), a claim of self-defense will not be admissible in court unless the parties have first withdrawn from the encounter and the defendant was still legally attacked. The theory here is that a person cannot claim self-defense if they voluntarily entered into a fight, because it would imply that they were willing to use force in order to defend themselves; this defeats the purpose of self-defense. It has been held by Illinois courts that a person does not have a duty to retreat from a mutual combat encounter before claiming a self-defense claim. However, once the incident has stopped and the parties have withdrawn, then the same law that applied to the original combat applies to both parties with respect to the issue of self-defense. If either party ends the combat and voluntarily withdraws, then the other party is also deemed to have withdrawn from the encounter as well; therefore, neither party can claim self-defense if legally attacked thereafter. It is up to the judge and jury to determine the credibility and weight of this evidence, however it is clear that these principles apply to all parties involved in an encounter. For instance, if a bartender asked two men to leave the bar and the men continue to argue in the parking lot and fight, their altercation is a mutual combat encounter. If one of the men is injured in the fight and then sues with a claim of self-defense against the other man, the judge would be able to instruct the jury on the law and consider this credibility in deciding on the admissibility scale. Though it may seem trivial to place such importance on this small word difference at the time of the encounter, it can have a large impact on the parties themselves and the outcome of any litigation that results from the encounter. In this sense, the difference in terms may even be covered by the practical importance of deciding for presupposition of intent. While it may be difficult to determine how willing a person was to use force to defend themselves, if the person is claiming self-defense in court against the person they battled with, it would be presumed that the person was indeed willing to defend themselves by force. The other person, on the other hand, may be able to claim self-defense because they were the legally injured party since they did not consent to the fight.
Controversies Associated with Mutual Combat
Mutual combat laws have long been a topic of heated discussion. Some advocates argue that mutual combat laws are essential in recognizing and punishing self-defense, while others believe they enable unlawful violent conduct and hence serve as a poor defense against criminal charges. In Illinois, cases are decided on an individual basis and this approach allows for flexibility in the application of the law. Factors such as the type and level of force used, prior provocation, and even the deceased party’s prior criminal history might be considered. Thus, an ambiguous framework is created under which both cases of perceived injustice and justice can flourish from time-to-time.
In 2004, prior to a major policy shift related to state criminal justice data reporting requirements, the Illinois Criminal Justice Agencies Council found that 34 percent of the state’s criminal homicide victims were not involved in any criminal activity, such as gang disputes, drug dealings, and other illegal enterprises known to result in violence. The same report stated that 57 percent of homicide fatalities were involved in some kind of altercation with another person at the time of death, including 41 percent whose altercation could be considered mutual combat. In short, 47 percent of criminal homicides happened as a result of mutual combat. Of those fights, 61 percent broke out into lethal conduct for reasons that were not drug or gang related. Studies of other states have found similar results, suggesting that in many states, at least one-quarter of all homicide fatalities occur during altercations deemed mutual combat.
Given the role that public perception plays in politics and law , it is perhaps unsurprising that recent legislative activity has seen a move to change Illinois’ mutual combat laws. In 2015, Chicago Democratic state senator Kwame Raoul sponsored legislation to amend the state’s aggravated battery law (720 ILCS 5/12-3.05), effectively removing the so-called "mutual provocation" exception to the lesser sentence of a class A misdemeanor.
Raoul claimed that the primary driver of his legislation was the notorious Laquan McDonald police killing, which seemed to find particular relevance in this context given that McDonald had attacked his alleged attacker with a knife (a 4" blade) in the immediate seconds prior to the shooting. However, following an investigation by the Independent Police Review Authority, it was found that there was not enough evidence that the officer was actually involved in physical conflict and the court therefore deemed the killing unjustified. Raoul’s legislation was never passed.
While Raoul supported the 2015 policy shift, a 2016 Chicago Tribune piece helped show how sometimes these changes can skew away from the legal intention supposed to become codified. In September of 2015, David Wiggins punched and killed David Guyana, and prosecutors rejected his self-defense claim in favor of a charge of voluntary manslaughter. That is when Wiggins’ attorney started to focus on challenging the mutual combat exception. Given that a fight happened between two men who did not share a relationship outside the specific interaction that night, prosecutors agreed to a night in jail, a year of probation, and 240 hours of community services for Wiggins.
