True Legal Impossibility

True Legal Impossibility

Every scene in the preceding sections ended the same way: the plan failed because some fact in the world differed from the defendant's belief, and once that fact was corrected the statute condemned what he did. One kind of impossibility runs in the opposite direction and does defeat an attempt charge. True legal impossibility exists when the defendant believes that his conduct, or the result he is pursuing, is forbidden, and the criminal law does not in fact prohibit it.¹ Courts also call it pure or juridical legal impossibility, and every label describes a defendant who has misjudged what the law says while getting the facts right.² Because this is the one form of impossibility that works as a defense, the definition must stay narrow, and the question that identifies it is whether the law actually forbids what the defendant believed he was doing.

The question can be answered by running the test from the earlier sections. Let the defendant complete every act he intended, set every fact exactly as he believed it to be, and leave the law as it actually is. If a crime is then complete, the case is one of factual impossibility and the defendant is guilty of attempt. If no crime is complete even then, because the statute never reached what he meant to do, the case is true legal impossibility. A standard example is the hunter who fires at a deer believing the season has not yet opened, when in fact it has.³ The hunter did exactly what he meant to do, the facts are as he supposed, and the act is lawful, so no hunting offense exists for him to have attempted. Perjury supplies a second example. In jurisdictions where a false but immaterial statement is not perjury, a witness who gives one while believing it perjurious cannot be convicted of perjury or of attempted perjury, because completing what the witness intended would not have been that offense.⁴

Some examples turn on who may commit the offense or on a number written into the statute. In a jurisdiction that follows the common-law rule that a boy under fourteen is legally incapable of rape, such a boy cannot be guilty of attempted rape, because what he thinks he is doing, forcing sexual relations, is not rape when he does it.⁵ The Michigan Court of Appeals, in People v. Thousand, illustrated the age version of the point. A man who believes the age of consent is sixteen and has consensual intercourse with a girl he correctly believes is fifteen is not guilty of attempted statutory rape if the law in fact fixes the age of consent at fifteen.⁶ In each of these examples the defendant's facts are right and his picture of the law is wrong, and the law he pictures does not exist.

The woman in the arson scene earlier belongs with these examples. Every physical fact matched her belief, since the house was hers and she lit it, so the corrected-facts step of the sequence leaves nothing to change. The statute covers only a dwelling of another, so even a fully successful fire would not have been arson, and her mistaken belief about the statute's breadth cannot supply the missing element.

The rule mirrors a principle the reader already knows. A person who believes his conduct is lawful gains nothing from the belief when a statute forbids it, because ignorance of the law is no excuse. In the reverse situation, a person who believes his conduct is criminal does not make it criminal when no statute reaches it.⁷ Both halves rest on one commitment: the legislature, and not the defendant's understanding, decides what counts as a crime. If a defendant's belief could supply the prohibition, the person punished would be punished for the belief.

The rule also has a practical support for each element of attempt. On culpability, attempt requires the intent to commit a particular offense, and the defendant in these cases has shown a willingness to break the law without intending any offense the law defines, so the required mental state has no object.⁸ On danger, the failed pickpocket remains a threat to the next wallet, but a defendant whose conduct stays lawful even on his own version of the facts has shown no readiness to do what the law actually prohibits. The limiting case is the imaginary crime. A newcomer to a state who wrongly believes it has a “mopery” law making it a misdemeanor to act dejected on a public highway, and who walks onto the highway to act that way in protest, has done everything he intended and has violated no law.⁹ A conviction in that case would punish a belief rather than a violation.

The exception survives even where the rest of the impossibility doctrine has been dismantled. The Model Penal Code rejects factual and legal impossibility alike as defenses to attempt and retains only true legal impossibility, because when the conduct is not forbidden there is no offense for the defendant to have attempted.¹⁰ The same limit carries into the other inchoate offenses. A conspiracy aimed at something the law does not forbid lacks the criminal objective the offense requires, which is why pure legal impossibility is said to be always a defense there.¹¹ A later section returns to the Code's formulation and to the related offenses.

Set the buyer beside the woman who burned her own house. Both believed they were committing crimes, and both completed everything they planned, yet the cases separate at the corrected-facts step. Fixing the buyer's powder fixes the prosecutor's problem, because the statute then condemns the purchase. No change to the woman's house helps, because the house was already as she believed, and only a different statute would make her act arson. The location of the error decides the case: an error about the world leaves the attempt intact, and an error about the statute's reach removes the offense. Students lose this issue when they let a belief that conduct is criminal stand in for an actual prohibition, since a belief can describe the defendant's purpose but cannot enact a prohibition. The harder cases, where the mistaken fact concerns a legal status such as whether property is stolen, fall between these two poles, and the next section builds a working method for sorting them.