§ 29.09 Defenses
[A] Impossibility
[1] Common Law
Issues of factual and legal impossibility, matters of considerable complexity in the realm of criminal attempts,157 also arise in conspiracy prosecutions. For example, are D1 and D2 guilty of conspiracy if they agree to: (1) perform an abortion on a nonpregnant woman;158 (2) kill or have unlawful sexual intercourse with a non-existent person;159 (3) receive stolen property that was not actually stolen;160 or (4) steal trade secrets that turn out not to be secrets.161
Case law on the subject is thin. Some courts affirm or reverse convictions in this area without expressly identifying the issue as one of "impossibility." When identification of the issue is made, the stated majority rule is that neither factual impossibility nor legal impossibility is a defense to a criminal conspiracy.162 To the extent that there are special dangers inherent in group criminality,163 the factual or legal impossibility of committing a particular offense arguably does not negate the dangerousness of the conspiratorial agreement.164
[2] Model Penal Code
The Model Penal Code does not recognize a defense of impossibility in conspiracy cases. The Code's definition of conspiracy states that a person is guilty of an offense if she agrees with another person that "they or one of them will engage in conduct that constitutes . . . an attempt . . . to commit such crime," or if she "agrees to aid such other person or persons in . . . an attempt . . . to commit such crime."165
Of course, people do not conspire to attempt crimes; they conspire to successfully commit them. This language is meant to take account of the impossibility situation.166 Thus, as the Commentary suggests, if D1 and D2 agree to rob a bank that they incorrectly believe is federally insured, they may be convicted of conspiracy to rob a federally insured bank, although commission of such offense is impossible, because they would have been guilty of criminal attempt (based on the Code's abrogation of the impossibility defense in the criminal attempt realm167) had they proceeded with the plan.
[B] Abandonment (or "Withdrawal")
[1] Common Law
The crime of conspiracy is complete the moment the agreement is formed or, in some jurisdictions,168 once an overt act is committed in furtherance of a criminal objective. Once the conspiracy offense is complete, abandonment of the criminal plan by a party to the conspiracy—her withdrawal from the plan—is not a defense to the conspiracy.169 The reasoning is the same as with attempts: Once a crime has occurred, a person cannot undo that offense.170
An actor's abandonment of the conspiratorial objective, however, is not without relevance. If a person withdraws from a conspiracy, she may avoid liability for subsequent crimes committed in furtherance of the conspiracy by her former co-conspirators. Also, once a person withdraws, the statute of limitations for the conspiracy begins to run in her favor.171
Courts are strict in their requirement of proof of abandonment. Usually they require that the abandoning party communicate her withdrawal to each of her fellow co-conspirators.172 Some courts go further and require her successfully to dissuade the others from pursuing their criminal objectives.173
[2] Model Penal Code
Unlike the common law, the Model Penal Code provides an affirmative defense to the crime of conspiracy if the conspirator renounces her criminal purpose and thwarts the success of the conspiracy under circumstances demonstrating a complete and voluntary renunciation of her criminal intent.174
The drafters of the Code rejected the no-defense rule on the same ground that it recognizes the abandonment defense to other inchoate offenses,175 namely, that a voluntary renunciation of a criminal purpose negates the actor's dangerousness. On the other hand, in light of the special dangers inherent in conspiratorial groupings, it is insufficient for a conspirator merely to withdraw—she must also negate the danger of the group she joined.
[C] Wharton's Rule
[1] Common Law
[a] In General
According to the common law, an agreement by two persons to commit an offense that by definition requires the voluntary concerted criminal participation of two persons, cannot be prosecuted as a conspiracy. This has come to be known as "Wharton's Rule."176
The offenses of adultery, bigamy, and incest classically fall within the scope of Wharton's Rule. These offenses by definition require the willing participation of two persons; there is no way that just one person can commit these offenses. Other examples of crimes for which Wharton's Rule applies are: dueling; sale of contraband;177 and receipt of a bribe.178 A person cannot duel with herself, sell contraband in the absence of a willing buyer, or receive a bribe without a briber.
On the other hand, Wharton's Rule does not bar a conspiracy prosecution for: (1) possession of a controlled substance with the intent to deliver;179 (2) "bartering, exchanging, or offering" an illegal narcotic to another;180 or (3) unlawfully "receiving or disposing" of another person's property.181 In each of these cases it is possible for the offense, as defined, to be committed in the absence of an agreement.182
The rationale of Wharton's Rule is that if a substantive offense cannot be committed in the absence of an agreement, the added dangers inherent in group criminality are absent. This reasoning ignores the other rationale of conspiracy: the preventive-law-enforcement goal. That is, even if there is no increased danger resulting, for example, from two persons agreeing to duel, application of Wharton's Rule prevents the police from arresting the would-be duelers until they reach the more dangerous stage of an attempt.
Because Wharton's Rule can frustrate law enforcement, many courts today limit the applicability of the doctrine to cases in which the substantive offense has been consummated or attempted.183 That is, in jurisdictions that limit Wharton's Rule in this way, if D1 agrees to sell D2 heroin, the conspirators may be arrested, convicted, and punished for conspiracy to sell heroin. However, if the offense is attempted or completed before arrest, D1 and D2 may not be convicted and punished for the conspiracy. Instead, contrary to the usual rule,184 the conspiracy merges into the substantive offense, for which they may be charged.
Although Wharton's Rule was described in 1959 as...
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