Concept

Renunciation and Withdrawal

Attempt by Conduct Designed to Aid Another

Renunciation and Withdrawal

A helper who engages in conduct designed to aid another person's crime has, under subsection (3), already committed an attempt, because the Code makes the attempt complete even though the other person never commits or tries the crime.¹ The question here is what the helper can do afterward to improve the helper's position, and two doctrines compete for the answer. The first is the renunciation defense in § 5.01(4), which sits inside the attempt provision and names the subsections it covers. The second is the traditional rule that an accomplice may withdraw before the crime is committed, which belongs to complicity law and answers a different question: whether a helper remains responsible for the crime the principal later commits. Both involve a person who abandons a plan after helping it along, so they are easy to run together, and each receives its own treatment below.

Renunciation Under Subsection (4)

Subsection (4) provides that when an actor's conduct would otherwise constitute an attempt under subsection (1)(b) or (1)(c), it is an affirmative defense that the actor abandoned the effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of criminal purpose.² An affirmative defense excuses a defendant even though the prosecution can prove every element of the offense, and that feature explains why the defense exists. A defendant who has taken a substantial step toward a crime has already committed the attempt, so without a defense, stopping gains nothing, because the punishable act cannot be taken back. With the defense, a defendant who is partway along has a reason to turn back while the harm can still be avoided. The two adjectives in the Code's phrase, complete and voluntary, keep that reward from going to defendants who stop for reasons unrelated to giving up the criminal purpose.

The Code defines voluntariness by exclusion. Renunciation is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make accomplishment of the criminal purpose more difficult.³ The reason is that a defendant who turns back when the police arrive, or when the job proves harder than expected, is reacting to risk, and a plan that is dropped whenever risk rises has been abandoned only for self-protection. The phrase limiting the rule to circumstances not present or apparent at the inception confines it to new developments, since a danger the defendant already knew about when starting was part of the plan from the outset and cannot explain a later change of heart. The words in whole or in part matter as well, because a defendant who mixes a genuine change of heart with fear of capture has not satisfied the requirement.

The Code defines completeness the same way. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.⁴ Postponement and transfer share one feature: the criminal purpose survives, and only its timing or target moves. The defense exists to reward the end of a danger, so a defendant who has relocated the danger in time or place does not qualify.

Hypothetical Illustration

A defendant breaks into a closed pharmacy after hours, intending to steal controlled drugs. Unlawful entry of a structure in which the crime is contemplated is on the Code's list of conduct that may qualify as a substantial step, so the attempt under subsection (1)(c) is complete at the moment of entry.⁵ Standing among the shelves with nothing around the defendant changed, the defendant decides the plan is wrong, leaves empty-handed, and takes nothing. The renunciation defense is available, because the abandonment is both complete and voluntary.

Change what prompts the exit. If the defendant leaves because a patrol car stops outside, the cause is a circumstance that arose after the plan began and raised the chance of capture, so the renunciation is not voluntary. If the defendant leaves because the drug cabinet proves harder to open than expected, the cause is a circumstance that made the crime more difficult, with the same result. And if the defendant leaves intending to return next week, when the alarm system will be down for maintenance, the renunciation is not complete, because the decision to postpone leaves the criminal purpose intact.

The plan, the entry, and the empty hands stay constant across all four versions, and the only fact that moves the answer is what the defendant was responding to. A response to the defendant's own change of purpose supports the defense, while a response to rising risk, added difficulty, or a better opportunity later does not. The error that costs points on an exam is treating any decision to stop as renunciation, because the Code asks what motivated the decision and tests it against the two disqualifying categories.

The defense is also personal to the person who renounces. The same subsection provides that establishing it does not affect the liability of an accomplice who did not join in the abandonment or prevention.⁶ When two people pursue a crime together and one abandons the effort and prevents it, the other remains liable unless the other joins in that abandonment or prevention.

The harder question arises when the actor is a helper under subsection (3). Subsection (4) applies when conduct would otherwise constitute an attempt under subsection (1)(b) or (1)(c), and subsection (3) does not appear in that reference.⁷ Subsection (1)(a) is also absent, so the omission is not unique to helpers. The abandon-or-prevent language fits a helper's situation naturally, since a helper who regrets giving aid can try to recover the means or alert the target, and that fit is why the question presses. Two arguments follow. The textual argument says that a defense whose own terms name particular subsections does not reach an unnamed one. The purposive argument says that a helper's attempt is complete when the aiding conduct occurs, just as a subsection (1)(c) attempt is complete at the substantial step, so the reason for rewarding desistance seems to apply equally. The Code's text does not say which argument controls, and nothing in the provisions set out here settles how courts treat the point. On an exam, state the textual gap, present both arguments, and apply the voluntary and complete limits to the facts in case the defense is held available.

Accomplice Withdrawal

The second doctrine comes from complicity law and is independent of § 5.01. Under the traditional rule, a person who has procured, counseled, or commanded another to commit a crime may withdraw before the act and escape responsibility for it, provided the withdrawal is effective. The requirement of effectiveness follows from the derivative structure of complicity: a helper answers for the principal's offense because the helper's contribution became part of how that offense happened. A withdrawal removes the basis for that responsibility only if the contribution stops operating before the crime occurs. That explains the usual requirements. The withdrawal must come before the offense is committed, and it must undo the help, which for counsel or encouragement means communicating a clear repudiation to the principal, and for tangible aid means taking it back or otherwise neutralizing it. A timely warning to the authorities is a further way to head off the crime. An unspoken change of heart accomplishes none of this, because the principal goes forward with the help intact.

Withdrawal differs from renunciation in both source and function. Renunciation is a defense to an attempt charge, written into the attempt section and limited by its own text. Withdrawal limits derivative liability for a crime that another person goes on to commit. Subsection (4) itself shows that each actor's position is separate, since establishing the renunciation defense does not affect the liability of an accomplice who did not join in the abandonment or prevention.⁹ A principal's retreat therefore does not relieve the helper, and the helper must personally do the work of withdrawing.

Hypothetical Illustration

Lucia lends Dmitri a master key to a storage facility, knowing that he plans a burglary and intending it to succeed. Had Dmitri committed the burglary on that footing, Lucia would have been his accomplice. Two days before the planned night, Lucia tells Dmitri plainly that she is out and takes the key back. Dmitri burgles the facility anyway by cutting a lock. Lucia's contribution had stopped operating before the crime, and she has withdrawn effectively, so she is not responsible for the burglary.

Change what Lucia does. She has the same second thoughts, but she leaves the key with Dmitri, stops answering his calls, and says nothing. Dmitri uses the key. Her regret was private, and her aid operated exactly as she had intended when she gave it, so she remains an accomplice to the burglary.

The lent key, the planned burglary, and the helper's change of heart are identical in both versions. The fact that moves the answer is whether the helper communicated the withdrawal and took back the means. Students lose this issue by treating private regret as withdrawal, when the rule looks for an act that cuts off the effect of the help before the crime occurs.

Withdrawal also needs to be separated from subsection (3) as a matter of the question each one asks. Withdrawal asks whether a helper whose principal later commits the crime is its accomplice. Subsection (3) asks whether the helper attempted by engaging in aiding conduct, and that attempt is complete when the aid is given, whether or not the crime follows.¹⁰ Whether an effective withdrawal also erases an attempt under subsection (3) that was already complete at the earlier moment of aid is the same open textual question raised in the preceding discussion of renunciation. The text of § 5.01 does not answer it. The safe approach on an exam is two separate analyses: first, whether the helper effectively withdrew from the crime the principal committed, and second, whether subsection (3) liability for the aiding conduct survives, with the open question flagged.

Renunciation Under Subsection (4)

The Code gives a person whose conduct has already completed an attempt one way to improve that position, and the provision sits inside the attempt section itself. Subsection (4) makes it an affirmative defense, when the actor's conduct would otherwise constitute an attempt under subsection (1)(b) or (1)(c), that the actor abandoned the effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of criminal purpose.¹² An affirmative defense is one the defendant raises to avoid liability even though the prosecution can prove every element of the offense, so the person invoking it concedes that the attempt occurred and asks to be excused from it. Because the defendant is the one asserting the defense, the common-law background rule places the burden of establishing it on the defendant, unless the legislature allocates the burden differently.¹³

The defense exists because of where the Code draws the line for attempt. At common law an attempt required something close to the final step toward the crime, so a defendant who reached that point had no further chance to abandon the crime and a renunciation defense had no work to do. The Code sets the threshold much earlier, at a substantial step, and it pairs that early line with a defense meant to encourage a person who has crossed it to turn back before it is too late.¹⁴ Without the defense, a person who had passed the line would gain nothing by stopping, because a completed attempt cannot be taken back, and the law would lose its best means of persuading that person to stop. A further reason is that a genuine abandonment tends to show the actor is less dangerous than one who persists. The traditional view that abandonment after a completed attempt is no defense has given way in a number of places to the Code's approach.¹⁵

The text offers two routes to the defense: abandoning the effort, and otherwise preventing the crime's commission. For a person whose acts have set nothing in motion, abandonment simply means stopping. For a person whose acts have already put events in motion, stopping may leave the danger running, and the prevention route speaks to that situation by asking the actor to take the step that actually keeps the crime from happening. Either route must still pass through the two adjectives in the Code's phrase, complete and voluntary, and each adjective carries its own limit.

The Code defines voluntariness by what disqualifies it. Renunciation is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose.¹⁶ The limit has three working parts. The motivating circumstance must be new, since a danger the actor already saw when starting was part of the plan and cannot explain a later retreat. The circumstance must also fall into one of two categories, a greater risk of being caught or a greater difficulty of succeeding. And the words in whole or in part mean that a mixed motive fails, so an actor who combines a real change of heart with relief that the police have appeared has not renounced voluntarily. The reason is one of incentive. If every retreat from an obstacle earned immunity, each defendant whose plan was interrupted would claim to have been about to stop anyway, and the defense would swallow the attempt provision. Tying the defense to the source of the decision keeps it for the person whose purpose changed, because a person who retreats only from risk is as dangerous as before.

Completeness has its own exclusions. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.¹⁷ Postponement and transfer share one feature, which is that the criminal purpose survives intact and only its timing or target changes. The defense rewards the end of a danger, and a person who has moved the danger to next week or to the next victim has relocated it without ending it.

Hypothetical Illustration

A man spends several evenings watching a jewelry store from across the street, noting when the owner leaves, because he plans a burglary. Reconnoitering the place contemplated for the crime is on the Code's list of conduct that may be held a substantial step when it strongly corroborates the actor's criminal purpose, so his attempt under subsection (1)(c) is complete once those evenings have occurred.¹⁸ With nothing around him changed, he concludes the plan is wrong, discards his tools, and never returns. The renunciation is complete and voluntary, and the defense is available.

Change what prompts the exit. If he stops because a new security camera has been mounted above the entrance, a circumstance that arose after the plan began and raised the chance of capture, the renunciation is not voluntary. If he stops because the owner has installed bars on the windows, the circumstance made the crime harder, with the same result. If he gives up on this store because he has chosen a similar store two streets away, the renunciation is not complete, and the same is true if he plans to return during the holiday week when the owner will be traveling.

The surveillance, the substantial step, and the discarded tools stay the same in every version, so the only fact doing the work is what the man was responding to. A reaction to his own changed purpose supports the defense, while a reaction to new risk, new difficulty, a later opportunity, or a similar target does not. Because the Code tests motive against two lists of disqualifying circumstances, students lose this issue when they treat a retreat prompted even partly by new risk as renunciation, since the words in whole or in part defeat a mixed motive.

Subsection (4) adds that establishing the defense does not affect the liability of an accomplice who did not join in the abandonment or prevention.¹⁹ The defense is personal to the person who renounces, for a structural reason. When one participant steps back and the others press on, the danger the law cares about is still running, and excusing the others would reward them for a change of heart they never had.

The text of the defense also raises a point to watch. It applies when conduct would otherwise be an attempt under subsection (1)(b) or (1)(c), and the aiding provision, subsection (3), is not among the subsections it names.²⁰ Subsection (1)(a) is not named either, so the omission is not peculiar to helpers. Still, the abandon-or-prevent language fits a helper's position closely, since a person who regrets supplying the means can try to retrieve them or warn the target. A textual argument says that a defense whose own terms name particular subsections does not reach an unnamed one. A purposive argument says that a helper's attempt is complete when the aid is given, just as a subsection (1)(c) attempt is complete at the substantial step, so the reason for rewarding desistance seems to apply equally.²¹ Nothing in the provisions reproduced here settles which argument controls, and the question is best treated as unresolved.

The two scenes differ in the subsection that carries the attempt. The man who cased the store sits squarely within the text of subsection (4) because his attempt rests on (1)(c), while the lender's attempt rests on subsection (3), which that text does not list. The next section takes up a separate doctrine, accomplice withdrawal, that asks different questions about a helper who backs out.

Exam Analysis Steps

Because the defense has a threshold, an act of renunciation, and two disqualifying limits, it is best run in order, with the textual gap flagged at the start. The steps are these:

Confirm that the conduct would otherwise be an attempt under subsection (1)(b) or (1)(c), and flag the open textual question if the attempt rests on subsection (3).²²
Identify the act of renunciation, which must be an abandonment of the effort or an otherwise effective prevention of the crime.
Ask what motivated the decision, and reject voluntariness if any part of the motive was a new circumstance that raised the chance of detection or made the crime harder.²³
Ask whether the decision was to postpone the crime or to shift the effort to a similar objective or victim, and reject completeness if it was.²⁴
Check whether anyone else is relying on the renunciation, since an accomplice who did not join in the abandonment or prevention gets no benefit from it.²⁵

Accomplice Withdrawal

Renunciation under § 5.01(4) asks whether an actor whose conduct already amounts to an attempt can be excused by turning back. A different question arises when a helper has encouraged or assisted a crime, has second thoughts, and the principal commits the offense anyway: is the helper answerable for that offense as an accomplice? The traditional rule of accomplice withdrawal answers it. One who has procured, counseled, or commanded another to commit a crime may withdraw before the act is done and avoid criminal responsibility by communicating the fact of the withdrawal to the party who is to commit the crime.²⁷ The exposure at stake is liability for a completed offense that someone else carried out, which is why this doctrine sits beside the attempt provisions without being part of them.

In State v. Peterson the prosecution claimed that the defendant had not set fire to her house herself but had caused it to be set by an accomplice, August Anderson, and no one disputed that Anderson set it.²⁸ The defendant maintained that she had nothing to do with the burning. The court nevertheless addressed only her alternative argument, that even if the state's evidence of complicity were true she had withdrawn before the fire, because that point was decisive.²⁹ On that footing, the defendant, who was confined in a hospital, had tried through an intermediary named Carlson to induce Anderson to leave the premises before he set the fire and to come to her at the hospital. The court held that she had taken the most effective measures within her power to stop the plan, that Anderson must have understood from her request that she did not want the house burned, and that she had withdrawn in ample time and made that fact known to him unmistakably. She therefore avoided criminal responsibility, and Anderson alone answered for the fire.³⁰

Two features of the decision mark how far it reaches. Because the court assumed the state's evidence of complicity, it did not decide whether the defendant was in fact an accomplice. It decided that if she was, her timely and communicated withdrawal ended her responsibility. The court also took care to say that she was charged with arson rather than conspiracy, and that conspiracy is a separate offense from the crime that is its object.³¹ The withdrawal holding therefore speaks to responsibility for the arson Anderson committed, and it says nothing about whether an agreement already made is itself an offense.

The rule has two working parts, and each rests on its own reason. The first is timing. A helper answers for the principal's crime because the helper's encouragement or aid stands behind the principal's act, and before the act that contribution can still be cut off. Once the crime is done, nothing remains to take back, so the words before the act is done mark the last moment at which the helper can change what happens.

The second part, communication to the principal, does the subtler work. A principal who plans a crime in reliance on a helper's support keeps relying on it until told otherwise, so a helper who changes course silently leaves the plan running exactly as it was. Requiring the helper to speak ensures that the withdrawal reduces the risk of the crime, since the principal can then reconsider, proceed without the help, or abandon the plan. The requirement also removes a temptation. After a crime has been committed, every helper facing prosecution has a reason to claim a private change of heart, and a claim nobody heard is a claim nobody can test. Tying the defense to something the principal actually received confines it to helpers who did real work toward stopping the crime.

The encouragement, the promised lookout role, and the second thoughts are the same in both versions. The only fact that moves the answer is whether the withdrawal reached the principal before the act. Students lose this issue by treating a private change of heart as withdrawal, when the rule looks for a communication that the principal actually received, as Anderson did in Peterson.

Peterson involved a defendant accused of procuring or counseling, so the rule as stated there speaks in terms of communication. A helper whose contribution is tangible presents a harder case, because the principal may hold a key, a weapon, or a map that keeps working after the helper's words are spoken. The purpose of the rule suggests that such a helper must do whatever is needed to cut off the effect of the aid, since an announcement alone leaves the aid in the principal's hands. The Code separately addresses a person who terminates complicity before the offense in § 2.06(6)(c), and an answer under the Code should check the conditions of that provision, which this chapter does not set out.³²

The facts of Tally pose the same question in a different setting. Tally's telegram was aimed at stopping a warning from reaching Ross, whom the Skeltons were seeking to kill, and one variation asks what follows if Tally changes his mind and sends a second telegram telling Huddleston to ignore the first.³³ Tally's aid works by obstruction, so the second telegram targets the aid itself, whereas the defendant in Peterson spoke to the principal. Whether undoing the aid in that way ends complicity is the question the Code's termination provision exists to answer, and it is a question to flag rather than to assume resolved.

Withdrawal must also be kept apart from § 5.01(3). Withdrawal asks whether a helper is an accomplice in a crime that the principal went on to commit. Subsection (3) makes a person who engages in conduct designed to aid another guilty of attempt although the crime is not committed or attempted by the other person, and the renunciation defense in subsection (4) names subsections (1)(b) and (1)(c) without naming (3).³⁴ A helper who effectively withdraws before the principal acts therefore has an answer to complicity in the completed crime. Whether withdrawal or renunciation also erases an attempt under subsection (3) that was complete when the aid was given is a question the text leaves open, so the safest exam approach is two separate analyses with that gap flagged.

Exam Analysis Steps

Because the doctrine turns on timing and on what the principal received, it is best run in order, with the attempt question held apart. The steps are these:

Confirm that the principal committed the crime and that the helper would be an accomplice on those facts, since without that exposure there is nothing to withdraw from.
Identify what the helper contributed, whether procuring, counseling, commanding, or tangible aid, and when it was given relative to the act.
Ask whether the helper acted before the act was done, because a withdrawal that comes after the crime is too late.
Ask whether the helper communicated the withdrawal to the principal, directly or through an intermediary, clearly enough that the principal must have understood it, as in Peterson.³⁵
Where the contribution was tangible aid, ask whether the helper did more than speak to cut off its effect, and flag the Code's provision on terminating complicity.³⁶
Analyze separately whether the aiding conduct already performed creates attempt liability under subsection (3), and flag the open question whether withdrawal or renunciation reaches it.³⁷