Father Mateo gripped his rosary and muttered his prayers. The mob had rampaged down the avenue and past what vantage the hallway window offered, but the crash of breaking glass and satisfied grunts still sounded too near. From an alley across the street Rita frantically motioned for the priest to join her. The holy man gathered his robes and turned towards the back door, but his eyes lingered upon an unexplored dresser at the opposite end of the corridor. Father Mateo redoubled his prayers. Whatever Rita thought, the priest was not beseeching God that he and the athlete would flee Innsmouth before the riot consumed it. Rather, Father Mateo prayed that he could resist the temptation to search every cache for arcane secrets, which so far had cost them two chances to escape.
While waiting to contribute her share, Olivia took the opportunity to survey the colony. Despite the dwindling foodstuffs, every supply run seemed to result in Gabriel returning with fewer resources and more hungry mouths. Perhaps in the beginning this group had had a chance at surviving, but now failure was all but a mathematical certainty. Her stay was always supposed to be temporary, but the last part of her scheme—finding a firearm— proved slow going. Her luck had finally changed last night at the derelict police station, and Brian's watch tonight would be an opportune time to make her exit. Olivia stepped forward to contribute to the food crisis and placed some tin cans surreptitiously filled with gasoline into the communal bin. The actual baked beans were in a plastic bag in her backpack. Adding fuel to the pile may have been a little blunt as far as metaphors go, but before the dead walked the earth she had been a doctor, not a writer.
For some people, the purpose of playing games is to test their mettle against the wit and resourcefulness of other humans. Other people enjoy banding together in order to tackle a common problem. And still others eschew exclusively competitive or cooperative games; these gluttons for paranoia prefer relying on other people while knowing that at least one of them may be secretly undermining the group's progress.
Those who play such "hidden traitor" games run the risk of being doublecrossed by a close friend, or themselves being tasked with betraying. If characters were made to answer for their backstabbing, what legal defenses might they employ and how likely are they to succeed? As always, readers are invited to drink deeply from the fount of text below, but can also skip directly to the discussion about the rules, law, and conclusion.
One quick note, the phrase "hidden traitor," like the "Robber" from Settlers of Catan, is legally inaccurate. Technically, "treason" refers to betraying one's allegiance to their country's government. See 18 U.S.C. § 2381 (Deering 1994). Because the players in most "hidden traitor" games do not represent a nation-state's regime, disloyalty to the group does not constitute treason.
Both Mansions of Madness and Dead of Winter pit all human players against a selected scenario, the former in Lovecraft's prohibition era and the latter in the midst of a modern, frozen zombie apocalypse. Players control characters who take turns exploring the board, discovering boons, and suffering setbacks. The games differ, though, in how they mete out the players' hidden roles.
The Old Roles and the New
In Mansions of Madness all players start out with the same goal: complete the scenario's requirements. Sometimes the task is to solve a crime, other times to escape a rioting town; in every game something ancient and sinister is hunting the group. Players choose from a variety of characters, each of which has a special power, sometimes initial equipment, and separate statistics for their health and sanity. Some characters are physically hardier while others are more mentally resilient. As they encounter obstacles and horrors, the characters' physical health and mental sanity are chipped away, possibly leading to bodily injuries or private neuroses. In case of mental afflictions, only the respective player knows which "insanity" their character has incurred. Sometimes the condition is relatively mild, like becoming unable to disagree with other players. Other insanities inflict additional victory requirements on the character, like needing to acquire an arcane spell or a specific type of weapon before the scenario ends. The worst disorders pit the player directly, and clandestinely, against their comrades. For example, those who suffer from "One of the Thousand" can only win if they have a blade in hand and end their turn in the same space as another character . . . the session ends immediately and the rest is implied.
Undead and You: A Survivor's Guide
Dead of Winter, on the other hand, assigns all players secret objectives as part of the initial setup. Players must accomplish these in addition to the scenario's objectives in order to win. Many objectives place additional requirements on the player, such as hoarding food or fuel—the very same resources the group needs in bulk to survive the crises that constantly assail the colony. More insidius objectives label the receiver a "betrayer." Instead of trying to achieve the scenario's objectives as well as their personal requirements, a betrayer typically has to ensure the colony fails while pursuing their own selfish ends. Because players can vote to exile those whom they believe are working against the common good, betrayers often initially attempt to support the colony in order to bide their time and complete their initial steps before sabotaging the group.
Generally speaking, Mansions of Madness and Dead of Winter have 2 types of hidden roles:
- those that increase the requirements for an individual player to win beyond the scenario objectives; and
- those that allow an individual—and only that individual—to win by undermining the communal goal.
In both cases the game ends when the scenario is completed or a failure condition is reached; if a character has not accomplished their hidden role, that player does not "win" even if the group beats the scenario. Players in the first category might thus delay taking actions that would advance the game's scenario in order to progress their personal requirements. For example, a character that must complete the game with a specific kind of item may search presumptively unnecessary caches or explore irrelevant areas instead of assisting with a puzzle or couriering a key item to another character. Because the group's survival and other characters' immediate safety often depend on every player assisting one another, such delays can easily lead to conflict and accusations. Yet while there are military rules that criminally punish servicemembers who do not properly discharge their duties,1 "common law traditionally took a hard line, rejecting any legal duty to" rescue someone in distress. Stockberger v. United States, 332 F.3d 479, 480 (7th Cir. 2003).2
For those in the second category of hidden roles, the affected player does not simply delay furthering the group's objectives in order to achieve their own. Instead, he or she intentionally undermines the group, often times surreptitiously. Given the bleak circusmtances Mansions of Madness and Dead of Winter places players in, succeeding in a treacherous roles often has the practical impact of condemning other characters to death even if that was not the explicit objective.
When there is no question that a person has physically committed a wrong, a defendant may argue he or she did not have the mental culpability to be punished. Three examples of such arguments are the defense of necessity, the defense of duress, and the defense of insanity.
Choosing the Lesser of Two Evil
The necessity defense addresses the ethical dilemma of when forces beyond one's control render his or her wrongful conduct the least bad option; it is premised on the belief that one should not be punished for preventing a greater harm. 2d Am. Jur. § 135 (2019). Necessity applies both as a defense against the tort of trespass in civil law and more broadly in criminal law. Since neither game deals with property rights, the below analysis focuses only on the criminal aspect.3
One of the most famous necessity cases, Regina v. Dudley and Stephens, hails from England and deals with grisly fate of shipwrecked sailors who went weeks without food. 14 Q.B.D. 273 (1884). The pair of named defendants, along with a Mr. Brooks and the younger decedent, were shipwrecked when the yacht they were sailing upon was lost in a storm. The four castaways made it to a smaller boat along with 2 pounds of turnips, which lasted the group 3 days. On the 4th day the young men caught a turtle, which they ate until the 12th day. For 8 days thereafter the group had nothing to eat, and their only freshwater was whatever rainwater they managed to collect. During that period, the defendants repeatedly engaged Mr. Brooks about drawing lots in order to choose one of their number to sacrifice so that the others might live. Mr. Brooks would not consent. On the 20th day, the defendants killed the decedent, all 3 survivors (both defendants and Mr. Brooks) fed off their shipmates for 4 days, at which point they were rescued by a passing vessel. The court acknowledged the decedent was in a weaker condition and unlikely to survive the others; the court also determined the remaining 3 sailors would not have likely lived long enough to be rescued had they had not resorted to cannibalism. Still, the defendants were found guilty of murder and sentenced to death; on appeal the verdict was upheld but the punishment was commuted to 6 months of incarceration. The appellate court determined that one's duty to live is not absolute, and that the defendants had chosen the weakest and youngest amongst them to kill. While the court did not find the act "devilish," it nevertheless held that even their dire situation did not justify the calculated taking another life, and thus the defendants had committed murder.
Decades earlier, a U.S. court also found a sailor guilty of homicide after being shipwrecked. In United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842), a ship in transit from Liverpool to Philadelphia struck an iceberg nearly 70 years before RMS Titanic met her historic fate. The defendant boarded a long boat with the first mate, 7 crew members, and 22 passengers; a jolly boat held the captain, second mate, 7 crewmembers, and 1 passenger. The remaining 31 passengers went down with the ship. The long boat immediately sprung a leak and was significantly over capacity, at trial the captain and second mate both opined the defendant's vessel was not seaworthy and likely to capsize in rougher seas due to the amount of people onboard. The captain and first mate conversed while their two boats were near each other; the first mate said he would likely have to cast lots to throw some personnel overboard. The captain assented, but said it should be the last resort and not something to speak of at the time. Both vessels survived the night, and in the morning parted. That night, and 24 hours after the ship had sunk, the waves began to heighten. For reasons not made clear at trial, the defendant and other crew members began throwing passengers overboard at around 10:00 pm. In total they cast 14 men and 2 women over the side of the boat and to their icy death; no crew members were sacrificed. The following morning the skies cleared and the long boat was rescued by a passing ship. The court found that the "law of necessity" could divest the taking of human life from its unlawfulness. For necessity to apply, though, the "slayer must be under no obligation to make his own safety secondary to the safety of others." Id. at 366. Yet sailors, like stagecoach operators and steamboat owners, owe a duty to brave the hazards and protect their passengers by virtue of accepting payment for passage. Id. at 367. Additionally, while the court did not identify how sacrifices should have been chosen, the court did endorse the position that when "the ship is in no danger of sinking, but all sustenance is exhausted, and a sacrifice of one person is necessary to appease the hunger of others, the selection is by lot." Id. The court held random lots was the fairest mode and one discussed between the captain and second mate, yet the crew eschewed the practice and instead chose to throw only passengers over the side board. Accordingly, the defendant was punished (being the only crewmember from the long boat the court could find and try).
Under Duress
Like necessity, duress is both a civil defense and a criminal defense.4 The defense of duress excuses criminal conduct when the actor: (1) was under a threat of unlawful threat of imminent death or serious bodily injury; (2) held a well-grounded fear that the threat would be carried out; and (3) had no reasonable opportunity to escape the threat. 21 Am. Jur. 2d Criminal Law § 137. While the "defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils." United States v. Bailey, 444 U.S. 394, 409-10 (1980) (determining inmates were not entitled to either a duress or a necessity instruction to the jury when the court found that, after escaping confinement to avoid allegedly unsafe conditions in jail, the defendants remained at large for weeks and months rather than report themselves and the confinement conditions to the authorities). See also People v. Heath, 255 Cal. Rptr. 120 (Cal. Ct. App. 1989) (determining that duress is a reaction to an imminent harm whose immediacy undermines the actor's intent to engage in criminal conduct while necessity refers to a future harm that the actor is able to weighs against the consequences of the misconduct he or she will engage in to avoid said future harm). In State v. Metcalf, 396 N.E.2d 786 (Ohio Ct. App. 1977), the court held the defendant's sale of marijuana was done under duress and therefore not criminally culpable. The court identified several facts that demonstrated the defendant's reasonable fear, namely: undercover narcotics officers threatened a third-party to either produce money or drugs, causing the third-party to beg for his life; while at the defendant's home and in the defendant's presence, the agents threatened the third-party again to produce cash or drugs, or suffer at least serious physical harm; the undercover officer, in the defendant's home, appeared to be (and was) armed; and the defendant's wife and two children were present during the threats of physical harm.
The Gods Must be Crazy
In both necessity and duress defenses the defendant acknowledges they knew their conduct was wrong, but asserts he or she was not culpable given the perceived risks at the time; one arguing they were insane, however, asserts that a mental disease or defect prevented them from distinguishing between right and wrong at the time they committed the crime. 21 Am. Jur. 2d Criminal Law § 43 . The "insanity defense is available only to those persons who have lost contact with reality so completely that they are beyond any of the influences of the criminal law." Id. Courts have been wary to apply the insanity defense to "a psychiatrically or psychologically diagnosed condition overtly manifested only by anti-social behavior," least the exception "swallow[] the rule of criminal responsibility." United States v. Torniero, 735 F.2d 725, 729 (2d Cir. 1984). In Torniero, the defendant's conviction for interstate transportation of stolen jewelry was upheld despite his argument that his gambling addiction rendered him legally insane. Curiously, the defendant did not state his condition made him incapable of appreciating the wrongfulness of transporting stolen goods. Rather, he asserted that the compulsion to gamble left him unable to resist becoming a thief and stealing in support of that habit. The appellate court noted that "mental health professionals h[e]ld seriously contradicting views" that a gambling addiction constituted a mental disease or defect rising to the level of legal insanity. Id. at 731. Additionally, the court did not find there was sufficient evidence on the record that a compulsion to wager was legally relevant to transporting stolen jewelry.
The legal debate surrounding the excuse that "God told me to do it" is a surprisingly perennial one given the deific decree defense is recognized in only some states, and even then is rarely successful. See Christopher Hawthorne, Deific Decree: The Short, Happy Life of a Pseudo-Doctrine, 33 Loy. L.A. L. Rev. 1755 (2000). In State v. Applin, a Washingtonian court affirmed a cult member's murder conviction despite the defendant's claim that he was God's "chosen vessel" to kill a former cult member. 67 P.3d 1152 (Wash. App. 2003). The court held that one of the requirements for the "deific decree" defense is for the defendant to prove, by a preponderance of evidence, that the perceived command from God "destroyed the defendant's free will and his ability to distinguish right from wrong." Id. at 1154. The court held that there is no obligation to instruct jurors on whether "right from wrong" referred to a legal or moral standard, and the court affirmed the jurors' rejection of the defendant's defense. Colorado invoked similar language in People v. Serravo, 823 P.2d 128 (Colo. 1992), when it upheld a defendant's acquittal for attempted murder; the Serravo jury agreed the defendant was not guilty by reason of insanity. The court held "a defendant may be judged legally insane where, as here, the defendant's cognitive ability to distinguish right from wrong . . . has been destroyed as a result of a psychotic delusion that God has ordered him to commit the act. " Id. at 140. In Serravo, the defendant stabbed his wife in the back while she slept. He did so under the belief that God had ordered the act so the defendant could (literally) sever their marriage bond and continue his plan of establishing a sports complex and teaching people the path to perfection.
With the above legal frameworks in mind, is a character ever excused when they betray their group? First, the concept of "betrayal" needs to be defined. There is no American legal requirement that one must, at all times and in all ways, act for the benefit of the group. Thus characters saddled with additional victory requirements, like Father Mateo, are not necessarily engaged in treachery just because they take some time to advance their private agenda. After all, such characters must still fulfill the scenario's collective objectives to win and, presuming rationality, they will still seek to do so. However, characters who have alternative win conditions, like Olivia, only win by stopping the group from succeeding. It is these characters, who actively work against the group's goals, that I will analyze below. The last conceit is that this discussion is about the fictional characters' rationale for their treachery; the human players are merely enacting the rules the group agreed to abide by when selecting the game.5
Necessity refers to when an individual has no reasonable alternative but to break the law, and excuses the actor when they avoid the greater harm. As an affirmative defense, it is the accused's responsibility to prove their justification to the factfinder. While the players may have no other option to win than to betray the group, it is not clear why the character's disloyalty is the lesser evil. From the characters' points of view, they may be less satisfied if the group succeeds, but the group's goal is typically to avert a crisis (either by stymieing the rise of Lovecraftian evils in Mansions of Madness or warding off the collapse of an afterscape society in Dead of Winter). Even if a character argued the group's success would mean that character's demise, cases like Dudley and Stephens and Holmes show the duty to self is not absolute, especially when used to justify sacrificing others.
Similarly with duress, there is no evidence a betrayer is subject to a threat of imminent death or serious bodily injury if he or she do not sabotage the group. In fact, if the turncoats did not adhere to their hidden agenda and instead continued contribuuting to the group's success, the betrayer's lot would be arguably be improved since a world-ending catastrophe would be averted.
Depending on the game, though, the insanity defense may be successful. The argument is more difficult in Dead of Winter since there is often no evidence that a mental disease or defect rendered the character incapable of distinguishing right from wrong. For many, the only proof that a character might be suffering from a mental health issue is their antisocial behavior, a standard that courts like Torniero explicitly sought to avoid. In Mansions of Madness, however, characters are exposed to literal horrors that demonstrably erode their soundness of mind: the mental conditions they incur are labeled as "insanity" and the the characters typically undergo a behavioral shift partway through the game as they change to agents of chaos. For those afflicted with disorders like "Pact with Yog-Sothoth," the perceived commands from a vile and manipulative god could constitute a deific decree in jurisdictions that recognize it, or at least constitute additional evidence that the character is so far removed from reality that they are no longer able to discern right from wrong.
1. See 10 U.S.C. § 883 - Malingering (Deering 2019), 10 U.S.C. § 892 - Dereliction of Duty (Deering 2019).
2. The Stockberger court identified 3 exceptions to the lack of an affirmative duty to rescue: (1) where the rescuer has assumed a contractual duty to rescue the victim; (2) where the victim is in the rescuer's custody and thus without access to alternative rescuers; and (3) where the victim's peril has been caused by the putative rescuer himself.
3. In civil law, "public necessity" justifies one person entering another person's land if the actor reasonably believes it is necessary to avert an imminent public disaster; "private necessity" enables an actor to enter or remain on another person's land if it appears necessary to prevent serious harm to the actor, his land, or chattels, or those of a third-party. N.Y. State Energy Research & Dev. Auth. v. Nuclear Fuel Servs., Inc., 561 F. Supp. 954 (W.D.N.Y. 1983) (determining utility companies did not meet the public necessity or private necessity standards to justify the continued presence of their spent nuclear fuel rods in the plaintiff's facility after the plaintiff requested they be removed). One key difference between a public and private necessity defense is that in the former the actor is liable for damages stemming from any unreasonable behavior, whereas in the latter the actor is liable for both any damages stemming from unreasonable behavior and damages to the property of the owner itself. For example, one who enters another person's property and chops down trees to stop a fire from spreading to the neighborhood would not be liable for the tree damage under a public necessity theory. Someone who drives onto another person's lawn in order to avoid a flash flood would not be fined for trespassing, but would owe money for any damage to the yard caused by the car.
4. Like criminal law, the focus on duress in contract law is whether the actor has been deprived of their free will. See Rissman v. Rissman, 213 F.3d 381 (7th Cir. 2000)
5. A player might even argue the game itself placed him or her in duress by mandating their character betray the group. In Hichino Uyeno v. Acheson, 96 F. Supp. 510 (W.D. Wash. 1951), the defendant was initially denied his passport based on the U.S. government's view that he had forfeited his U.S. citizenship. The defendant was born in the state of Washington in 1926 and was taken by his parents to Japan in 1930. In 1948 the defendant sought a passport to return to the United States, and was denied by the U.S. consulate because he had voted in Japan's 1947 election. The court determined that although the defendant had, under U.S. law, sworn allegiance to Japan by participating in a political election, he had not done so willingly. Specifically, the defendant was urged by media, family, and friends to vote in the election, and was led to believe his food ration card would be revoked if he did not. The court found these pressures "singly, and together" were "so great that his participation in the election was not" voluntary. Id. at 519. The defendant's fear of loss of freedom of action and the fear of hunger and deprivation meant he had not deliberately chosen allegiance to another country. Within the game rules, the "insanity" and "secret objective" cards are dealt randomly; no player chooses to be a betrayer. For those afflicted with treachery, the game has restricted their freedom of action and deprived them of enjoying the group's success, thus the player's decision to pursue their assigned agenda could also be seen as involuntary.