§ 27.08 Defense: Abandonment

§27.08 Defense: Abandonment¹⁷⁹

Once a person crosses the line from preparation to perpetration of an offense, i.e., once a criminal attempt has commenced, may the actor avoid conviction for the attempt if she abandons her criminal conduct before consummation of the target offense? For example, in People v. McNeal,¹⁸⁰ M, with the intention of raping V, grabbed V from a bus stop, took her at knifepoint to his home, pushed her onto a couch, and then began to fondle V. In an effort to prevent her rape, V begged M to let her go, explaining that she was trying to finish her education and that she was on the way to school to take two examinations. After V promised not to report him if he let her go, M apologized, took her to the bathroom so that she could fix her hair, and then walked her back to the bus stop. Clearly, M's acts satisfied any reasonable test of attempted rape, but should he be entitled to defend his actions on the ground that he abandoned the rape before consummation?

Although there is disagreement on the matter, most scholars believe that abandonment was not a common law defense to attempt,¹⁸¹ and many courts today continue to decline to recognize the defense.¹⁸² To the extent that a defense of abandonment is recognized today, however, it applies only if the defendant voluntarily and completely renounces her criminal purpose. Abandonment by the defendant is voluntary when it is the result of repentance or a genuine change of heart.¹⁸³ Abandonment is not voluntary if the actor is motivated by unexpected resistance, the absence of an instrumentality essential to the completion of the crime, or some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense.¹⁸⁴ And the abandonment is not complete if the actor merely postpones the criminal endeavor until a better opportunity presents itself.¹⁸⁵

There is also support for the proposition that a person may not claim abandonment as a defense, even if the actor's desistance is motivated by genuine remorse, once she has performed the last act necessary to commit the offense or has already caused serious harm to the victim. For example, if D shoots or stabs V, becomes remorseful, and then obtains life-saving emergency care for V, D is still guilty of attempted murder; the abandonment came too late.¹⁸⁶

The common law no-defense rule is motivated by objectivist principles, namely, that once the social harm of an attempt has occurred, a person should no more be able...