Just when it seems it couldn't get any worse for Marty McSorley, it does. After delivering a two-handed slash to Donald Brashear of the Vancouver Canucks on Feb. 21, the Boston Bruins enforcer, goon, strong-man--call him what you will--was slapped with the harshest penalty ever given by the National Hockey League (NHL), and was suspended for the rest of the season. Since then, he has been demonized, vilified and chastised by the horrified public and has become for some the embodiment of everything wrong with hockey. Even his fellow players have lashed out against the 17-year veteran, trying to distance themselves from his actions. It seemed McSorley had everything going against him.

Except a criminal injunction.

That changed last Tuesday when a Canadian court charged McSorley with assault with a weapon. The accusation followed a week-long investigation by Vancouver police, and formally moved the attack from the jurisdiction of professional sports into the realm of criminal justice. The necessity of this action is questionable; McSorley's suspension has already cost him $72,000, and it is unlikely he will ever play hockey professionally again. He has expressed his regrets and has apologized profusely. Furthermore, Brashear will most likely follow up with a civil suit of his own. So is a jail term really necessary?

There is no question that the attack deserved the initial condemnation, outrage and punishment it has so far received. But to pursue legal action and prosecute McSorley in the courts is stepping too far. In a sport characterized by speed and contact, in a sport that pits large men against other large men in a small enclosed rink, in a sport that not only condones but practically encourages fist-fights, it is unreasonable to believe that tempers won't flare and altercations such as this won't happen. Additionally, coaches are just as guilty as players for spurring on such tragedies. They send out their big men with the explicit instructions, "Go out there and don't just dance."

We cannot hold McSorley legally accountable for actions that his sport, his profession and his employer tacitly encourage. In football, we don't prosecute a cornerback for blindsiding a receiver and driving his head into the ground, nor do we place charges against a pitcher in baseball for beaning a batter in the head. Some might say these comparisons are unreasonable, claiming McSorley did what no one else in their right mind would have done. After all, McSorley went too far and hockey certainly doesn't condone hacking people over the head with sticks.

But as it turns out, McSorley really wasn't all that out of line.

The day after McSorley was suspended, a player on the New Jersey Devils took a two-handed swipe with his stick at another player's head--just as McSorley did. Unlike McSorley, he missed. His punishment was a two-minute penalty. The player skated back onto the ice without incident after the penalty kill.

McSorley's is not a one-of-a-kind case in a sport where just this season, only 63 percent of its games are fight-free. One need only look at the other 37 percent to see other instances of goons and enforcers going at each other like Brashear and McSorley did.