Squid Game has set the world on fire. Since its launch in mid-September, the show has become the most watched show on Netflix by a wide margin, and internal Netflix documents estimate that the show will bring in nearly $900 million of revenue (or roughly 23 Squid Games’ worth of prize money). In fact, the show has been so popular that it has even led to the creation of real-life squid games around the world. Given that the squid game is, in essence, a voluntary Hunger Games-style murderfest, you might think that the games would be illegal. And you would be right. But the legal complexities of the squid games are more interesting than one might think.
In fact, trying to identify who could be charged for what crimes is the legal equivalent of a count-the-triangles brain teaser. As a simple example — once you look past the obvious murders, deaths, and kidnappings, there are a host of more subtle legal issues relating to labor and employment, tax, and maritime law (among others).
Today I’ll consider some of the more interesting legal questions to arise from the squid games. My analysis is based on US law, but I don’t expect there are many differences between US and South Korean law on these issues. (For instance, South Korean law has similar provisions for conspiracy liability and also allows for asset forfeiture.)
Issue One: Did the Organizers of the Squid Games Break the Law?
This one’s a gimme — of course the organizers broke the law. Murder is illegal. Kidnapping is illegal. Gassing people is illegal. Holding people captive and not letting them leave is illegal.
But the liability for the organizers doesn’t stop with the crimes that were committed directly by them. Under the felony murder rule, a person can be charged with murder for any death that takes place during the commission of a felony. Thus, the organizers could be convicted of the murders that took place during their kidnapping or false imprisonment (which is to say all of the murders).
Even without the felony murder rule, the organizers could still be charged for murders committed by contestants, under the theory that they solicited those murders. As one might expect, it’s illegal to hold up a bag of money with a proclamation that “the money goes to the last man standing.” Whichever way you slice it, the game’s organizers would receive a life sentence or even the death penalty.
Issue Two: Is It Illegal to Sign Up for the Squid Games?
A slightly harder question is whether joining the games as a competitor would be illegal. The answer depends on when the decision to join is made. In the show, competitors had two points at which they could join the game. At the first point, all they knew was that they could sign up to play games and earn money. There’s nothing remotely illegal about that.
The real question comes later. After deciding to join the games, the contestants were gassed and transported to a secret island where it became clear that the “games” at issue were of the “most dangerous” variety, as over 200 competitors were killed in the first round alone. After the first round, a majority of the contestants voted to end the games and so were promptly transported back home. A few days later, the game runners contacted each participant and explained that they could choose to return to the game. This set the stage for the more challenging question — would it be illegal to rejoin the game?
On one hand, one could argue that there’s no crime here, since risky behavior is not itself illegal. Indeed, people are free to scuba dive, base jump, and wingsuit to their heart’s content. One person even decided to climb El Capitan without any ropes or safety equipment. If those risks are allowed, why not this?
The difference here is that the cause of death isn’t the risky behavior — it’s murder, pure and simple. And even though the competitors aren’t required to commit murder themselves, the fact remains that their participation in the games directly facilitates and enables the murderous acts. For that reason, the competitors could be charged with conspiracy to commit murder simply for deciding to join the games — even before any additional games were played.
Conspiracy to commit murder takes place when two or more people (1) agree to commit a murder, and (2) make an “overt act” in furtherance of the agreement. Here, the agreement to commit a murder is evidenced by the decision to play in and facilitate the murderous games, and the overt act would be showing up at the assigned pick-up place for transportation to the game site. Of note, one can be charged with conspiracy to commit murder even if one’s role in the conspiracy is minor — that is, one need not be the “trigger man” in order to be guilty of the crime.
There are three additional points worth mentioning. First, under this theory, one would be guilty of conspiracy to commit murder as soon as one agrees to join the game. But the liability doesn’t stop with the conspiracy charge — contestants could be charged with murder as soon as a death actually takes place. Under conspiracy law, all co-conspirators can be charged and convicted of the underlying crime as if they had committed the crime themselves. Thus, the competitors would find themselves facing both conspiracy charges and murder charges.
Second, charges would be limited to deaths caused by the game itself. Contestants could not be charged for murders committed by competitors outside the context of the game, as those acts were not part of the conspiracy and were not committed in furtherance of the conspiracy.
Third, the rules of the game add an interesting wrinkle into the mix. A person who joins a conspiracy is not bound to the conspiracy for life. A person can withdraw from a conspiracy — and can avoid charges — by “doing acts which are inconsistent with the purpose of the conspiracy and by making reasonable efforts to tell the co-conspirators about those acts.” The only catch is that, to be effective, the withdrawal must take place before the underlying crime is committed.
The squid games offer a convenient means of withdrawal. At any point, contestants can call a vote to end the games. If a majority of the contestants vote to withdraw, the game ends and contestants are returned home. One could argue that a vote to end the game could be viewed as withdrawing from the conspiracy. Competitors could still be charged for murders that took place before the vote, but a withdrawal would eliminate liability as to murders that take place later. And some reduction in liability is better than no reduction.
Issue 3: What About the Prize Money?
All this talk about murder is well and good, but what happens when a competitor actually wins the game? With over $30 million in winnings, one might think that a competitor would be able to hire a lawyer to defeat the likely criminal charges that would come their way. Not so fast! There are a few obstacles that would prevent winners from reaping their reward.
For one thing, the courts would never enforce a contract for the prize money, since any contract that involves murder would be “void as a matter of public policy.” This means that the greedy bank or company running the competition would have no incentive to make good on the prize money.
But even if it did, the fact that the reward is associated with illegal murder games means the government would be able to seize the prize money under a theory of civil forfeiture. All the government would need to do to effectuate the forfeiture is show that it’s more likely than not that the money contributed to the commission of a crime or was itself the proceeds of a crime. In the world of the show, that might be a tall order, since the game appears to be a well-kept secret, but in the real world, civil forfeiture happens with alarming frequency.
Squid Game Is All About Legal Violations
Science fiction and fantasy stories often confront us with previously unheard-of situations that force us to think about legal rules from first principles. Traditional legal rules exist in the realm of the real, and so they haven’t had to contend with things like mind-swapping in Dollhouse, whether the undead have a right to un-life, or whether Godzilla should be considered an endangered species.
What makes Squid Game interesting is that it doesn’t try to hide or shy away from its illegality, but rather embraces it. The question when it comes to the games isn’t whether they’re illegal, but instead whether we, as the viewers, are clever enough to identify how they’re illegal. Indeed, the show seems to make an effort to throw in pretty much every legal violation one can think of.
Murder isn’t enough? Why not throw in some illegal organ sales, as well? Or illegal firearms? But why stop at felonies, when you can throw in lesser offenses like illegal crematoriums or fire code violations? For good measure, you can even throw in violations of the Chemical Weapons Convention.
Taken together, it’s clear that the challenge of spotting all the legal infractions is itself more challenging than any of the actual squid games. But don’t worry — if you need help identifying additional crimes, I’d be more than happy to offer some additional assistance. All I ask in return is that you agree to hand over a few marbles.
Published: Oct 28, 2021 11:30 am