Section 61.9.31. Contributory conduct.

The division shall reduce or disqualify compensation when there is a causal relationship between the contributory conduct on the part of the victim and the victim’s injury or death. Contributory conduct includes consent, provocation, or incitement of the crime on the part of the victim.

       9.31(1) Consent, provocation, and incitement. In assessing consent, provocation or incitement on the part of the victim pursuant to Iowa Code section 915.87(2)“a,” the division may consider factors including, but not limited to, the following:

        a.           Whether charges are filed against the suspect;

        b.           Whether the victim attempted to withdraw from the incident;

        c.           Comparable or reasonable force on the part of the suspect in response to an action of the victim;

        d.           The amount of time from the beginning of the interaction between the victim and the suspect and the criminal act committed by the suspect;

        e.           The age of the victim; and

        f.            Comparable size or strength of the victim and suspect.

       9.31(2) Additional assessment of consent. In assessing the causal nature of consent pursuant to Iowa Code section 915.87(2)“a,” the division may consider the victim’s age, physical condition, psychological state, cultural or linguistic barriers, and any compelling health or safety reasons that would jeopardize the well-being of the victim.

       9.31(3) Consent in intoxicated driving cases. A victim who was the passenger in the vehicle of a driver who has been determined to have been legally intoxicated at the time of the crash shall not be automatically denied eligibility for compensation. The division may consider whether the victim could have reasonably known the intoxication level of the driver, the driver’s behavior or judgment appeared impaired, the victim encouraged or discouraged the driver from driving, or the victim’s judgment was impaired.

       9.31(4) Additional assessment of provocation and incitement. In assessing the causal nature of provocation or incitement pursuant to Iowa Code section 915.87(2)“a,” the division may consider law enforcement documentation that indicates:

        a.           Retaliatory action. The crime was committed as retaliation for a prior physical assault or injury committed by the victim against the perpetrator, and the victim could have reasonably foreseen the likelihood of retaliation.

        b.           Gang action. The crime was a direct result of gang activity, including gang initiation, or was inflicted as retaliation for prior gang activity in which the victim participated in a criminal street gang as defined in Iowa Code section 723A.1(2).

        c.           Mutual combat. The crime was an incident of mutual combat if the victim:

       (1)             Initiated a physical altercation;

       (2)             Made a credible threat of bodily harm against the person, took action to indicate the intent to carry out the threat and a physical altercation immediately followed; or

       (3)             Accepted a verbal challenge to engage in a physical altercation, took action to indicate acceptance of the challenge and a physical altercation immediately followed.

        d.           Exception to mutual combat. Incitement and provocation are not present in an incident of mutual combat when a significant escalation of the fight, such as the introduction of a deadly weapon, is made by a person other than the victim or when a third party becomes involved resulting in more serious injury than the victim could have reasonably expected.

       9.31(5) Victim’s criminal act. Contributory conduct includes assisting in, attempting, or committing a criminal act by the victim. A causal relationship must be documented between the injury or death for which compensation is sought and the criminal act of the victim.