In some ways, this is a classic law-school hypothetical: what is the man guilty of who picks an empty pocket, or or who shoots at a stuffed decoy deer when it’s not deer season, or who fires a bullet into a corpse, believing it’s a man asleep who he wishes to kill?
You clearly cannot convict the guy in the first example of theft - he stole nothing. There is no law against shooting a stuffed deer at any time of the year, so even though the second fellow was obviously trying to hunt deer out of season, he did not. And the third guy may be guilty of some garbage like “mutilating a corpse,” but he’s clearly not guilty of murder, since he didn’t kill anyone.
This enters the real world when Detective Joe Friday goes online with his AOL account pretending to be a 13-year-old girl. He receives messages from someone interested in forming a sexual relationship, replies, and ultimately sets up a meeting. When the malefactor arrives, pockets full of condoms and a motel key in hand, clearly ready for the assignation, he’s arrested.
But wait, he cries! It was impossible to charge me with sex with a minor… or even with attempted sex with a minor. There was no minor here! Only beefy Joe Friday, who was last a minor when Eisenhower was president. There was no possibility of my ever completing this crime, since there was never a real minor involved. Therefore, I have committed no crime, and haven’t even attempted to commit a crime, because it was impossible for me to have committed a crime. Therefore, you should let me go.
States that use the Model Penal Code don’t have this problem; the Model Penal Code’s “attempt” clauses focus on what the defendant believed. But some states, to this day, do not use the MPC framework, and their “attempt” statutes focus on an “objective” view of criminality, on whether the defendant actually came close to completing a prohibited act.
The impossibility of completing the offense is very germane to the objective approach because impossibility vitiates the Commonwealth’s theoretical concern that the actor may cause or come close to causing the harm or evil that the offense seeks to prevent.
In such states, if an element of the offense cannot be established, an accused cannot be found guilty of the prohibited act.
Or so it seems to me.
Law Dopers amongst us - am I right or wrong? And if I’m right - should all states follow the Model Penal Code, especially in the area of defining “attempt”?
Virginia has never been a trendsetter in this area, as has wryly been observed before.