The Hunger Games is a trilogy of books, the first of which is also called The Hunger Games and which has been adapted into a film that debuts next week. It looks like it’s going to be both a good movie and feature more accurate archery than The Avengers, but I digress. The books are set in a future dystopian society in which teenagers, selected more or less at random, are forced to compete to the death in the titular Hunger Games.
Since the book takes place in a fundamentally different world than the real one, we can’t really examine the Games on their own terms. We can say they would certainly be illegal in the real world (no surprises there), but it may be interesting to examine why, exactly. After that we’ll ponder just how dangerous a real-world version of the Games could be without obviously running afoul of the law.
Some very minor spoilers follow (nothing you wouldn’t know from the trailer, I think).
I. The Set-Up
Most entrants to the Hunger Games are selected randomly, but it is possible to volunteer. That’s how the protagonist enters the Games, for example. The Games themselves take place in a large uninhabited area in which the competitors (called tributes) are given weapons and supplies and expected to kill each other. The people running the Games (the Gamemakers) have various carrot and stick mechanisms they use to goad the tributes into competing, and the more or less inevitable result is that a single victor emerges with everyone else dead. If a group of tributes refused to fight then the Gamemakers would likely kill all of them or all but one.
II. So Why Exactly is This Illegal?
Intuitively this seems like it should be illegal, and it would be in the real world. For starters, the Gamemakers’ actions are pretty clearly illegal: the involuntary competitors are essentially kidnapped and falsely imprisoned, then threatened with death if they don’t compete.
The voluntary competitors are pretty much just as bad, as they’re agreeing with the Gamemakers to try to kill other people, many of whom are there involuntarily. That’s conspiracy and either attempted or actual premeditated murder.
(Note: By “voluntary competitors” I mean both tributes like the protagonist who make a direct choice to compete as well as those tributes who enter their names into the tribute selection lottery multiple times in order to earn extra food for their families. Arguably both are voluntarily entering the Games, whereas the tributes whose names are entered the minimum required number of times could be said to be involuntary competitors.)
The involuntary competitors are only slightly better off. They aren’t guilty of conspiracy because they didn’t agree to compete, but they may still be guilty of attempted murder or murder because they can’t claim the defenses of duress or necessity, since neither is a defense to murder in most jurisdictions. They could avoid liability by only fighting in self-defense, however, but that would usually mean waiting until other tributes attacked them first, which isn’t typically a winning strategy.
Now wait a minute, you might say, what about consent? Doesn’t it matter that the voluntary competitors consented to compete in the games? The answer is no, not really, even if the minor competitors’ parents also consented. While a person can consent to an assault or battery (think of boxing, for example), one cannot consent to one’s own serious injury or death. See, e.g., State v. Mackrill, 345 Mont. 469, 476 (2008) (“it is against public policy to permit a person purposely or knowingly to cause serious bodily injury to another, even though that conduct and the resulting harm were consented to”).
Well, what about assumption of the risk? Aren’t the voluntary competitors assuming the risk that they will get hurt? The problem here is that assumption of the risk does not extend to intentional wrongdoing, only negligence and recklessness. Restatement (Second) of Torts § 496A (“A plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.”) (emphasis added).
Similarly, the exception made for the harm inherent in sporting events only applies to lawful sports, whereas the Games are predicated on kidnapping, conspiracy, and threats. See, e.g, Colo Rev Stats, § 18-1-505(2) (“When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if … the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport.”).
That pretty much sums up why the Games would be both criminal and tortious, but what are the real-world limits for something like this?
III. So How Close Can We Get?
Clearly we’ll have to begin with consent, so we can toss out all of the involuntary competitors. Ideally we’d get informed written consent from both the competitors and their parents, together with explicit waivers of liability for the Gamemakers and other competitors. Of course, to be meaningful the consent must be ongoing, which means the competitors must be free to leave the game at any time.
An important part of the informed consent process is to ensure that the competitors and their parents are aware of the reasonably foreseeable hazards of the Games. This helps bring the Games within the exception for lawful sports: “When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if: … (b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport ….” Model Penal Code § 2.11(2) (emphasis added).
The Games themselves would have to be watered down from a fight to the death to something more like Mixed Martial Arts. While certainly a vigorous athletic contest, serious injuries are not inherent in MMA, and so consent and assumption of the risk will go a lot farther in eliminating both criminal and tort liability.
That doesn’t mean that everyone is necessarily off the hook. Competitors and Gamemakers could still be liable for injuries that result from, for example, breaking the rules of the game that are concerned with safety. See, e.g., Nabozny v. Barnhill, 31 Ill. App. 3d 212 (1st Dist. 1975). With children involved the Games would likely need to either take advantage of sovereign immunity or have a hefty insurance contract.
So after all that, what are we left with? Basically a kind of free-form outdoor MMA, which the competitors can quit at any time. Not quite as exciting as a forced fight to the death in the wilderness, we’ll admit. What can we say? Lawyers spoil all the fun.