§ 27.07 Defense: Impossibility
[A] The Issue
D wants to kill V. Standing outside V's house, D fires a gun through a window at the bed in which she believes V is sleeping. V is not killed because V is not at home. Is D guilty of attempted murder, even though it was impossible for D to kill V under these circumstances?
Our intuitions almost certainly tell us that D should be convicted of an attempt. She has the requisite mens rea, and she has performed every act in her power to kill V. From a policy perspective, too, D merits punishment—she is dangerous, culpable, and has acted in a manner that would cause societal apprehension. The law seemingly confirms our moral intuitions and legal analysis: D almost certainly is guilty of attempted murder.128
However, suppose that we change the facts slightly. Suppose that when D fires the gun, V is in the bed, but is already dead from a coincidental heart attack. That is, V is a corpse, rather than a "human being," as defined by homicide law. Is D now guilty of attempted murder? No, according to dicta in various court opinions.129 Is this dicta wrong, or can this example be distinguished in a principled manner from the "empty bed" case?
Or suppose that we move our case to a forest. D and V are hunting together; D wants to use this opportunity to kill V, so she shoots at V in the woods. As it turns out "V"—the object at which she aimed and fired her gun—is a tree stump. Or V, wisely sensing danger, displays a wax facsimile of herself, and it is this object that hunter-D shoots. Attempted murder? No, according to dicta and a holding in equivalent circumstances.130
Now, consider an increasingly frequent Internet scenario. Suppose that D enters an Internet chat room and communicates with V, whom D believes is an underage female, but who actually is an undercover adult male decoy. If D sends V an obscene photograph by electronic mail, he cannot be convicted of distribution of obscene materials to a minor, since V was not a minor, but may he be convicted of attempted distribution to a minor?131 Or, if D makes plans over the Internet with V to have her perform nude dancing, may D be convicted of "attempted sexual performance by a child" when he arrives at the planned site only to learn that the 13-year-old female is a 47-year-old male Internet undercover officer?132
Finally consider these two cases. In each one, a male has sexual intercourse with a 17-year-old female in a jurisdiction that sets the age of consent for intercourse at 16. In other words, in both cases statutory rape has not occurred. D1, however, believed that the girl was 15, so he thought that he was committing statutory rape.133 D2 knew that the girl was 17, but he incorrectly believed that the lawful age of consent was 18, so he also thought he was committing statutory rape.134 Should either or both of these cases constitute attempted statutory rape?
The real cases, and imaginative hypotheticals, go on and on. In each of these cases, the actor presumably has the requisite mens rea, and has gone far enough for her conduct to constitute an attempt (indeed, usually she has done everything in her power to commit the target offense). But, in each of these cases, the desired outcome is predestined to fail—for one reason or another, it was impossible for the actor to succeed in consummating the offense. Therefore, these cases raise the same issue: whether a person should be convicted for an attempt that cannot succeed. In other words, is "impossibility" a defense to the crime of attempt?
[B] General Rule
The common law rule regarding impossible attempts is easy to state, but not always easy to apply. It distinguishes between two types of impossibility: "factual impossibility" and "legal impossibility." At common law, legal impossibility is a defense; factual impossibility is not.135
When one moves from the hornbook rule to specific cases, however, the law becomes exceedingly complex. Many pages of court opinions and scholarly literature have been filled in a largely fruitless effort to explain and justify the difference between factual and legal impossibility. Perhaps no aspect of the criminal law is more confusing and confused than the common law of impossible attempts.
In part because of the confusing nature of the law, and as a result of the influence of the Model Penal Code,136 most jurisdictions no longer recognize legal impossibility as a defense.137 However, as discussed below,138 some arguments exist for retaining the defense in some form.
[C] Factual Impossibility
[1] In General
"Factual impossibility" exists when a person's intended end constitutes a crime, but she fails to consummate the offense because of an attendant circumstance unknown to her or beyond her control.139 Examples of factual impossibility are: (1) a pickpocket putting her hand in the victim's empty pocket;140 (2) an illegal (e.g., non-physician) abortionist beginning the surgical procedure on a nonpregnant woman;141 (3) an impotent male trying to have nonconsensual sexual intercourse;142 (4) an assailant shooting into an empty bed where the intended victim customarily sleeps;143 and (5) an individual pulling the trigger of an unloaded gun aimed at a person who is present.144
In each of these examples the actor was mistaken regarding some fact relating to the actor, the victim, and/or the method of commission. More specifically, the target offense was not consummated because the actor chose the wrong victim (the pickpocket and abortion cases), the victim was not present (the empty bed case), the actor was not physically capable of committing the offense (the impotency case), or inappropriate means were used to commit the crime (the unloaded gun case). Had the circumstances been as the actors believed them to be, or hoped that they were (e.g., the pocket contained property; the woman was pregnant; the victim was in the bed; the actor was physically capable of having intercourse; the gun was loaded), the crimes would have been consummated.
It should not be surprising that common law judges were unsympathetic to claims of factual impossibility. In the cases described above, the actor demonstrated dangerousness (critical to subjectivists) and manifested criminality (important to objectivists). No good reason existed to recognize a defense merely because a person chose her victim badly, did not use proper means to commit the crime, or for some other reason unrelated to her culpability did not successfully commit the offense. The common law no-defense rule has remained the law to this day.
[2] "Inherent" Factual Impossibility
Although factual impossibility is not a defense to a criminal attempt, "inherent impossibility" (or, more completely, "inherent factual impossibility") may be a defense. The doctrine of inherent impossibility has arisen primarily in scholarly literature and judicial dictum, but it is recognized as a statutory defense in one state.145 To the extent that the defense is recognized, it applies if the method to accomplish the crime was one that "a reasonable person would view as completely inappropriate to the objectives sought."146
What is an example of an inherently impossible attempt? In one of the earliest cases to discuss the topic, an example was suggested: a " 'voodoo doctor' . . . [who] actually believed that his malediction would surely bring death to the person on whom he was invoking it."147 However, this is a poor example, as an incantation is not a "completely inappropriate" means of killing another if the intended victim believes in voodoo and, as a consequence, could die of fright. A better example of the doctrine is attempting "to sink a battleship with a pop-gun."148
Should the law recognize an inherent-impossibility defense if a real-life case arises? For an objectivist, the answer is clear: If conduct is harmless and would appear so to a person of normal understanding—firing a pop-gun at a battleship would presumably look like a person playing around—no societal apprehension will occur and, therefore, punishment is unjustified. For subjectivists, the defense is harder to support: The actor is no less morally blameworthy because she has chosen an inherently impossible way to consummate the offense; on the issue of dangerousness, one who is so far out of touch with reality that, for example, she believes that she can sink a battleship with a pop-gun, may later commit some other irrational and dangerous act, or such a person may come upon a more sensible way to accomplish her criminal task.
[D] Legal Impossibility
[1] Introductory Comments
"Legal impossibility" is an unfortunate term, for two reasons. First, there are two different types of attempts that implicate "legal impossibility." Those two versions will be termed here (this text's terminology) "pure" and "hybrid" legal impossibility. The failure of courts generally to distinguish between them creates considerable confusion.149
Second, neither version of legal impossibility should be identified as such. As is developed below, hybrid legal impossibility cannot be distinguished from factual impossibility in any principled manner and may properly be merged with it. On the other hand, pure legal impossibility may as accurately be identified as an application of the general principle of legality.150
The overwhelming modern trend is to abolish legal impossibility (more accurately, the category here described as "hybrid legal impossibility") as a defense.151 However, "pure legal impossibility" presumably remains a basis for exculpation.
[2] Pure Legal Impossibility
"Pure legal impossibility" arises "when the law does not proscribe...
To continue reading
Request your trial