This essay means to correct the ways in which the law of homicide deals with lucky winners or survivors of dangerous games that end in the deaths of unlucky (dead) "losers" or even unluckier non-participants. Drag racing and Russian roulette are my focus, not only because they are so frequently litigated, but also because most other (unlawful) excessive risk-taking ventures are not, grammatically, what we mean when we say "game." It is not so much my intention to evaluate the role that "moral luck" plays generally in the world or specifically in the criminal law. It is my position that in the notorious risk-versus-harm debate, harm or consequences should always matter in assessments of blameworthiness -- that is, those would-be wrongdoers who "luck out" and cause no harm or less harm than they set out to are less deserving of blame than are those criminals who accomplish what they put themselves to. Within the confines of that debate, my point here is self-consciously narrow: that while lucky survivors of dangerous games may well be in a sense responsible for the death of co- or non-participants, winning at drag racing or Russian roulette is not, except under the greediest notions of causality or complicity, an instance of homicide unless the survivor coerces, bumps, manipulates, or otherwise "helps" the killer's deadly actions.
Dangerous Games & the Criminal Law, 16 CRIM. JUST. ETHICS 3 (1997).