Mutual Fighting and Consent: Is "We Were Both Fighting" a Defense in Michigan?

"We were both fighting" is not, by itself, a recognized defense to domestic assault in the Michigan sources reviewed for this guide. The model criminal jury instructions contain no instruction on "mutual combat" or "mutual affray," and the phrases do not appear in the judicial benchbooks that were searched.^[1] What Michigan law does provide is narrower: lack of consent is part of the definition of battery, and a person who willingly took part in an altercation can still claim self-defense under conditions.^[3][2]

This page sets out exactly what those sources say and where they stop. It is deliberately cautious and does not go beyond them. Nothing here should be read as advice that mutual fighting or consent is a defense to rely on.

What the sources say, and what they do not

Question	What the reviewed sources show
Is there a "mutual combat" jury instruction?	No. The self-defense group of the model instructions covers self-defense, defense of others and related topics; none addresses mutual combat.[1]
Can a willing participant claim self-defense?	Yes, but he or she must take advantage of any ability to retreat.[2]
Is consent part of the offense?	The definition of battery says the touching must have been against the other person's will.[3][4]
Is consent to a fight a defense to an assault that causes injury?	No reviewed source says it is.[7][1]

The last row is a statement about the statutes, model jury instructions and benchbooks reviewed as of October 2026. Reported appellate decisions were not searched for this page, so it does not claim that no Michigan court has ever discussed the point.^[1] Anyone whose case turns on it should ask a lawyer to research the case law against the specific facts.

Consent and the definition of battery

Under the domestic assault instruction, a battery is the forceful, violent or offensive touching of a person. The touching must have been intended by the defendant, and "it must have been against [the complainant]'s will."^[3] A Use Note adds that if the complaining witness's consent or the nature of the touching is at issue, the court should use the separate definitions of "force and violence" and of "touching."^[7]

Those definitions are short. "Force and violence" means any use of physical force against another person so as to harm or embarrass that person.^[8] "Touching" repeats that the contact must have been intended and against the other person's will, and adds that it does not matter whether the touching caused an injury.^[4]

So consent is not irrelevant. Much ordinary physical contact between people who live together is not against anyone's will, and is not a battery. But the instruction speaks of the will of the person touched at the time of the touching. Evidence that two people were arguing, or that both were angry, is not the same as evidence that one agreed to be struck. And the prosecutor may also proceed on an assault theory, which asks whether the defendant attempted a battery or did an act that would cause a reasonable person to fear an immediate battery.^[3] The two forms of the offense are compared in Assault vs. battery in Michigan.

A willing participant can still claim self-defense

The closest thing to a "mutual fight" rule in the reviewed sources comes from a 2025 Court of Appeals decision about a shooting, People v Allen: "if the defendant is a willing participant in an altercation, the defendant must take advantage of any ability to retreat from the situation, but is not foreclosed from asserting self-defense."^[2]

That sentence does two things. It rejects the idea that joining a fight wipes out the right of self-defense. It also attaches a condition: retreat where that is possible.^[2] The Self-Defense Act separately provides that a person who is not committing a crime, and is somewhere he or she has a legal right to be, has no duty to retreat before using non-deadly force.^[9] How that provision applies to a willing participant in a fight is not answered in the sources reviewed, and neither is how the Allen sentence applies where only non-deadly force was used.^[10] In the same case the court said that at common law a person has a duty to retreat, if possible, as far as safely possible, unless attacked inside his or her own home or subjected to a sudden, fierce and violent attack.^[11]

The ordinary limits still apply. The person must have honestly and reasonably believed that force was needed to protect against the imminent unlawful use of force; the force must have been appropriate to the attack; and the right lasts only as long as it seems necessary for protection.^[12][13][14] The full rules are in Self-defense under Michigan law.

Who started it: the aggressor rules

Michigan's instructions sort mutual confrontations by who began and how.

• Words only. If the defendant only used words, that does not prevent a self-defense claim if he or she was then attacked.^[5]
• Wrongfully bringing on the assault. The person claiming self-defense must not have acted wrongfully and brought on the assault.^[5]
• Starting a non-deadly fight. A person who assaults someone with fists or a weapon that is not deadly, or insults someone with words, does not lose all right to self-defense. If the other person responds with deadly force, the first person may act in self-defense, but only if he or she retreated where it would have been safe to do so.^[15]
• Starting with deadly force. A person who started an assault with deadly force or a dangerous weapon cannot claim self-defense unless he or she genuinely stopped and clearly let the other person know he or she wanted to make peace.^[16]

Two points follow. First, "the other person hit me too" is not the legal question. The question for each person is whether that person's own use of force met the self-defense rules. Second, when the evidence supports the claim, the prosecutor has to disprove self-defense beyond a reasonable doubt; the defendant does not have to prove it.^[17]

When police find two people who both used force

Michigan's statute on police domestic violence policies speaks directly to mutual incidents. When an officer has probable cause to believe that spouses, former spouses, co-parents, dating partners or people who live or lived together "are committing or have committed crimes against each other," the officer, in deciding whether to arrest one or both, should consider:^[6]

• the intent of the law to protect victims of domestic violence;^[6]
• the degree of injury inflicted on the individuals involved;^[6]
• the extent to which the individuals have been put in fear of physical injury to themselves or other members of the household;^[6]
• any history of domestic violence between the individuals, if it can reasonably be ascertained by the officer.^[6]

The same provision says the officer should not arrest an individual if the officer has reasonable cause to believe that individual was acting in lawful self-defense or in lawful defense of another individual.^[6] The statute speaks of arresting "1 or both individuals," so it does not rule out arresting both.^[6] Its factors guide the arrest decision at the scene; they are not jury instructions and do not decide guilt. See Dual arrest and "who started it" and What happens when police respond to a domestic call.

How a "mutual" incident plays out in court

Each person's case is separate. The prosecutor alone decides whether to prosecute and what to charge, so one person may be charged and the other not, or both.^[18] Where both are charged, each is presumed innocent and each case requires proof of every element beyond a reasonable doubt.^[19]

Several features of the evidence matter in these cases.

• Each person may be a witness in the other's case. A person facing his or her own charge has a right not to testify at his or her own trial.^[20] How that right applies when the same person is called as a witness against someone else is a question for that person's own lawyer.
• Injuries on both people. No injury is required for an assault, so the absence of marks on one person does not settle who assaulted whom.^[21]
• History. Evidence of a defendant's other acts of domestic violence may be admitted for any relevant purpose, subject to MRE 403.^[22] For that statute, an act of self-defense is by definition not "domestic violence."^[23] See Prior acts of domestic violence under MCL 768.27b.
• What the defendant knew. Jurors may consider evidence that the complaining witness committed violent acts in the past that the defendant knew about, in deciding whether the defendant honestly and reasonably feared for his or her safety.^[24]

What people get wrong

• "If we both fought, it cancels out." Nothing in the reviewed sources treats mutual fighting as cancelling an assault. Each person's conduct is judged on its own.^[1][2]
• "Police can't arrest anyone if both people are at fault." The policy statute contemplates the arrest of one or both.^[6]
• "I joined in, so I can't argue self-defense." A willing participant is not foreclosed from asserting self-defense.^[2]
• "It was an accident in the middle of a scuffle." That is a different argument, about intent rather than justification. See Accident and lack of intent.