# Is it possible to be guilty of an attempt to commit a crime of omission? **URL:** \ **Category:** Factual Questions\ **Created:** [November 4, 2010, 2:09am UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404 "2010-11-04T02:09:29Z")\ **Posts on this page:** 13\ **Page:** 2
**Author:** ![BrightNShiny](https://avatars.discourse-cdn.com/v4/letter/b/7bcc69/32.png) [@BrightNShiny](https://boards.straightdope.com/u/BrightNShiny)\ **Post date:** [November 5, 2010, 3:50am UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/21 "2010-11-05T03:50:02Z")
So, here’s Vermont’s duty to render aid statute: > [@](#): > > A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others. 12 VSA Sec. 519 I’m trying to think of a situation where you could attempt this, and I can’t come up with one. Let’s take this scenario: Villain Guy ties Nell to the railroad tracks and leaves. Joe, a hobo at the railroad yard sees this. He can easily untie her or call 911 on the payphone, but he chooses not to, because he’s a psycho. He grabs a chair and sits down to wait for the train. A little while later he gets up and heads over to a fence to pee. As he does, he accidentally brushes against the switch that moves the train onto a different track. Later, when the train rolls by, much to his surprise, it misses Nell. Then Dudley Doo-right finally shows up and unties Nell. I think Joe has met all the elements of the crime here. It doesn’t matter that Nell eventually was saved. Every moment that Joe didn’t render assistance, he was guilty of the crime as defined. His crime starts at the time he sees Nell tied to the tracks and it ends when Dudley shows up, but during that time in between, that’s all criminal activity. I don’t see a way to attempt this. Either you did it or you didn’t. JMO, of course. This is not my area of law, so feel free to correct. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 5, 2010, 4:10am UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/22 "2010-11-05T04:10:02Z")
> [@t-bonham@scc.net](#): > > What’s more common is for someone to fail to report signs of child abuse, then someone else reports it, and it is revealed that the first person knew, but failed to report. > > This used to happen, and the first person’s defense would be that they did not think those marks were actual signs of abuse, just normal childhood injuries. Now, the mandated reporter laws in most states eliminate this defense, by requiring the report even if the reporter does not believe it indicates actual child abuse. I don’t think anyone’s disputing that crimes of omission exist and that people commit them. The question here is whether you can commit an attempted crime of omission. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [November 5, 2010, 7:00am UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/23 "2010-11-05T07:00:34Z")
> [@Little\_Nemo](#): > > I don’t think anyone’s disputing that crimes of omission exist and that people commit them. The question here is whether you can commit an attempted crime of omission. Interesting interpretation, and maybe impossibly circular. If a crime of omission is a failure to act, how is it possible to _try_ to fail to act? Doesn’t that require an action of some sort? So I must take action in order not to take action? My head hurts. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [November 5, 2010, 12:31pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/24 "2010-11-05T12:31:26Z")
> [@Little\_Nemo](#): > > True. But how would somebody in such a profession attempt to not report child abuse but then unintentionally report it? Here’s how it might happen. Schoolteacher suspects abuse and “writes up” a report giving child’s name, description of injuries, etc. in the teacher’s lounge. After they finish, but before taking any action to actually send the document anywhere or alert anyone to its contents as required by the law, they decide that they are NOT going to report the suspected abuse (which would be an offense for the teacher) and will discard the report. The teacher decides to put the report in the trash, and attempts to do so, but accidentally mistakes the Principal’s mailbox for the trash can, thus leaving the report in the Principal’s mailbox. Under the laws effective in that jurisdiction, a teacher has the option of reporting suspected abuse either to the local Principal/Headmaster, or directly to the Police. Thus, the report was actually made, though unintentionally. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 5, 2010, 1:10pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/25 "2010-11-05T13:10:50Z")
> [@Jimmy\_Chitwood](#): > > _Factual_ impossibility is not a defense to an attempted crime; this is the situation where a person wants to commit a crime and does everything he needs to do to complete the crime, but some circumstance he isn’t aware of prevents him from being able to complete it. This is **Little Nemo** ’s unloaded gun example - you point the gun, you pull the trigger, you intend to kill somebody, and if things went the way you wanted them to, you’d kill somebody, but you don’t actually. That’s an attempted murder. > > _Legal_ impossibility is different, and can be a defense. Legal impossibility is when a person wants to commit a certain action and does all the steps necessary to perform that action, but some external circumstance makes it so the thing he’s trying to do isn’t a crime. If you thought it was murder to shoot a dude in a video game, so you aimed at him and fired, technically you were attempting a murder, but since unbeknown to you killing in video games is legal, you’re in the clear. Likewise, if you tried to sneak up behind somebody in an alley and stab the crap out of them, except it was a trash can and not a person, you’re not guilty of attempted murder even though you wanted to kill somebody and tried to do so. > > Those two categories blur in the middle considerably, and it’s not the clearest distinction in the world in any event, but the idea of impossibility is the explanation for a lot of the examples given so far. Good discussion. I’d add the concept of “hybrid impossibility,” discussed on these very boards [some eight years ago by yours truly](http://boards.straightdope.com/sdmb/showpost.php?p=2003171&postcount=11). > [@BrightNShiny](#): > > Villain Guy ties Nell to the railroad tracks and leaves. Joe, a hobo at the railroad yard sees this. He can easily untie her or call 911 on the payphone, but he chooses not to, because he’s a psycho. He grabs a chair and sits down to wait for the train. A little while later he gets up and heads over to a fence to pee. As he does, he accidentally brushes against the switch that moves the train onto a different track. Later, when the train rolls by, much to his surprise, it misses Nell. Then Dudley Doo-right finally shows up and unties Nell. > > I think Joe has met all the elements of the crime here. It doesn’t matter that Nell eventually was saved. Every moment that Joe didn’t render assistance, he was guilty of the crime as defined. His crime starts at the time he sees Nell tied to the tracks and it ends when Dudley shows up, but during that time in between, that’s all criminal activity. I don’t see a way to attempt this. Either you did it or you didn’t. > > JMO, of course. This is not my area of law, so feel free to correct. Hobo guy is still guilty of failure to render aid. As you explain yourself, that crime becomes complete the moment he grabs the chair and sits down. He cannot also be convicted of attempting to fail to render aid when he is guilty of failing to render aid, because an attempt to complete a crime merges into the completed offense, just as the successive instants of the continuing offense merge into a single ‘fail to give aid’ continuous course of conduct. ---
**Author:** ![EristicKallistic](https://avatars.discourse-cdn.com/v4/letter/e/85e7bf/32.png) [@EristicKallistic](https://boards.straightdope.com/u/EristicKallistic)\ **Post date:** [November 5, 2010, 1:21pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/26 "2010-11-05T13:21:12Z")
This is all yet another reason to be voluntarily intoxicated at all times. In such a state, one can never be convicted of an attempt crime. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [November 5, 2010, 2:53pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/27 "2010-11-05T14:53:12Z")
Can one attempt drunk driving? Like, what if your blood alcohol was .007, _just_ shy of a DUI conviction? Can one attempt public intoxication? ---
**Author:** ![lalenin](https://avatars.discourse-cdn.com/v4/letter/l/3da27b/32.png) [@lalenin](https://boards.straightdope.com/u/lalenin)\ **Post date:** [November 5, 2010, 3:05pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/28 "2010-11-05T15:05:41Z")
I’m not sure if this fits your criteria, but a number of countries have [compulsory voting laws](http://www.idea.int/vt/compulsory_voting.cfm), so failure to vote can be punished. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [November 5, 2010, 3:45pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/29 "2010-11-05T15:45:14Z")
> [@Boyo\_Jim](#): > > Can one attempt drunk driving? Like, what if your blood alcohol was .007, _just_ shy of a DUI conviction? > > Can one attempt public intoxication? No, because those are strict liability crimes - intent doesn’t matter. If you’re drunk and you’re driving, you’re guilty whether you intend it or not; therefore whether you intend to do so is also irrelevant if you _don’t_ commit the crime. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [November 5, 2010, 4:09pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/30 "2010-11-05T16:09:26Z")
> [@lalenin](#): > > I’m not sure if this fits your criteria, but a number of countries have [compulsory voting laws](http://www.idea.int/vt/compulsory_voting.cfm), so failure to vote can be punished. Here’s my real story. I was resident in city N in New South Wales, Australia. City N (for the purposes of electing city councillors) is divided into 4 wards. The rolls for electing councillors are drawn up from those registered to vote in federal and state elections, and I was registered to so vote. There was a mistake made in drawing up the rolls, and I was listed as being in Ward 1 when my address was really in Ward 2. I turned up at the polling place to vote, and fund that I was not registered to vote in Ward 2 – at that time, neither I nor the polling clerk thought to check to see if I was enrolled in Ward 1. So (as permitted by law) I submitted a “protest vote”, alleging that I should have been enrolled in Ward 2, and submitting a provisional ballot. Some weeks later, I received a letter asking me to justify not having voted in that election, since (of course) my name had not been crossed off the list in Ward 1. My response was that I had in fact voted in Ward 2, and that I should have not been enrolled in Ward 1. And that was the end of it. But suppose that, instead of submitting a “protest vote”, I had just left the poling station after finding I was not on the roll for Ward 2. Would I then have been guilty of failing to vote in that election? (Of course, it’s legally irrelevant that I’m also an active member of a political party, and spent most of that day standing outside the polling place, handing out leaflets urging people to vote for particular candidates, then – when the poll closed – spent an hour or two inside the polling place as the scrutineer for a candidate. That just makes my alleged failure to vote a little more absurd.) ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [November 5, 2010, 5:12pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/31 "2010-11-05T17:12:09Z")
> [@Jimmy\_Chitwood](#): > > No, because those are strict liability crimes - intent doesn’t matter. If you’re drunk and you’re driving, you’re guilty whether you intend it or not; therefore whether you intend to do so is also irrelevant if you _don’t_ commit the crime. What if there’s additional evidence? You proclaimed loudly to your friends at the bar, “I’m gonna get drunk and go driving”, and you start drinking. 1. If a cop hears you, and you do turn out to be legally drunk, could he arrest you, maybe as you try to get into your car, for attempted drunk driving? I was gonna ask about if you think you’re drunk and your not… but I think that was covered upthread somewhere. ---
**Author:** ![EristicKallistic](https://avatars.discourse-cdn.com/v4/letter/e/85e7bf/32.png) [@EristicKallistic](https://boards.straightdope.com/u/EristicKallistic)\ **Post date:** [November 5, 2010, 5:35pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/32 "2010-11-05T17:35:41Z")
In most jurisdictions the cop can already arrest you for DWI well short of you actually driving. In NY once you turn over the engine you are sunk. In CT, defendants have been convicted just sleeping in the car, without the engine even on. There is little need in most states for an attempted drunk driving, as the “driving” part is mostly not necessary. Many statutes are just constructed such that it is illegal to “operate” a vehicle while intoxicated (indeed some states call it OWI or OUI). ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 5, 2010, 8:19pm UTC](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404/33 "2010-11-05T20:19:32Z")
> [@Boyo\_Jim](#): > > What if there’s additional evidence? You proclaimed loudly to your friends at the bar, “I’m gonna get drunk and go driving”, and you start drinking. > > 1. If a cop hears you, and you do turn out to be legally drunk, could he arrest you, maybe as you try to get into your car, for attempted drunk driving? > > I was gonna ask about if you think you’re drunk and your not… but I think that was covered upthread somewhere. It might depend on your purpose. There’s the urban legend about how one guy in the bar acts as a decoy. He pretends he’s been drinking and acts as drunk as possible. Then he stumbles down the street to where his car is parked. He fumbles around for several minutes trying to unlock the door and get the car started. Then just as he’s about to start driving, the police who’ve been watching all this pull up and prepare to arrest him for drunk driving. But the driver is suddenly completely sober and easily passes the sobriety test. Meanwhile back in the bar, all his genuinely drunk buddies were able to leave right after he did and drive away while the police were busy with the first guy. Now in a case like that, you might be able to make a case that the first guy was committing the crime of interfering with police officers in the performance of their duties. [Previous page](https://boards.straightdope.com/t/is-it-possible-to-be-guilty-of-an-attempt-to-commit-a-crime-of-omission/559404.md?page=1)