An inchoate offense, preliminary crime, inchoate crime or incomplete crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as the following: "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."See lists and chapters of texts at McCord and McCord, Infra, pp. 185-213, and Schmalleger, Infra, pp. 105-161, 404.
In some cases, inchoate offenses are alternatively called attempted offenses, such as attempted robbery being the inchoate offense of robbery.
Attempt,See, e.g., "§ 110.00 Attempt to commit a crime. A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." N.Y. Penal L. § 110.00. Found at New York State Assembly government web site. Retrieved on 2010-11-01 from http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@LLPEN+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=39445639+&TARGET=VIEW. conspiracy,See, e.g., "§ 105.00 Conspiracy in the sixth degree. A person is guilty of conspiracy in the sixth degree when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct. Conspiracy in the sixth degree is a class B misdemeanor." N.Y. Penal L. § 105.00. Found at New York State Assembly government web site. Retrieved on 2010-11-01 from http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@LLPEN+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=39445639+&TARGET=VIEW. and solicitationSee, e.g., "§ 100.00 Criminal solicitation in the fifth degree. A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct. Criminal solicitation in the fifth degree is a violation." N.Y. Penal L. § 100.00. Found at New York State Assembly government web site. Retrieved on 2010-11-01 from http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@LLPEN+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=39445639+&TARGET=VIEW. all require mens rea.
On the other hand, committing an offense under the US Racketeer Influenced and Corrupt Organizations Act merely requires "knowing",James W.H. McCord and Sandra L. McCord, Criminal Law and Procedure for the paralegal: a systems approach, supra, p. 206, citing United States v. Anguilo (1st Cir. 1988). that is, recklessness. Facilitation also requires "believing",See, e.g., "§ 115.00 Criminal facilitation in the fourth degree. A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid ...." N.Y. Penal L. § 115.00. Found at New York State Assembly government web site. Retrieved on 2010-11-01 from http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@LLPEN+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=39445639+&TARGET=VIEW. yet another way of saying reckless.
Intent may be distinguished from recklessness and criminal negligence as a higher mens rea.
Originally at common law, impossibility was a complete defense; See James Fitzjames Stephen, A History of the Criminal Law of England, Vol. II, 225 (1883) as it was under French law at one point. See Adolphe Chauveau, Faustin Hélie, Théorie du Code Pénal 382-3 (1843) Indeed, the ruling in Collins's Case L. and C. 471 was that an offender cannot be guilty of an attempt to steal his own umbrella when he mistakenly believes that it belongs to another. Although the "moral guilt" for the attempt and the actual crime were the same, there was a distinction between the harm caused by a theft and the harmlessness of an impossible act.James Stephen at 225. This principle was directly overruled in England with the rulings R v Ring and R v. Brown66 L.T. (N.S) 300, and 24 Q.B.D. 357. The example from R v Brown of an attempt to steal from an empty pocket is now a classic example of illustrating the point that impossibility is no defense to the crime of attempt when the conditions creating the impossibility are unknown to the actor. This principle has been codified in the Model Penal Code:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime he: purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be. MPC § 5.01 (1)(a) (emphasis added).
Consequently, the principle is universal in the United States either in Model Penal Code jurisdictions (40 states) or those remaining common law jurisdictions influenced by the reasoning in R v Brown.
Other cases that illustrate the case law for impossibility defenses are People v. Lee Kong (CA, 1892), State v. Mitchell (MO, 1902), and United States v. Thomas (1962).
Other scholars warn about the consequences of such a theory:
Certainly, possession of burglary tools, in those jurisdictions that criminalize that activity, creates an inchoate crime ( going equipped in the UK).See Schmalleger, Supra, p. 404. It is clear that:
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