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 An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur.''Criminal Law - ...

". "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.

Intent

Every inchoate crime or offense must have the ''

mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...

'' of intent or of recklessness, typically intent. Absent a specific law, an inchoate offense requires that the defendant have the specific intent to commit the underlying crime. For example, for a defendant to be guilty of the inchoate crime of

solicitation of murder Contract killing is a form of murder or assassination in which one party hires another party to kill a targeted person or persons. It involves an illegal agreement which includes some form of payment, monetary or otherwise. Either party may be ...

, he or she must have intended for a person to die.

Attempt An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step toward completing the crime, but for reasons not intended by the criminal, the final resulting crime does not occur.''Criminal Law - ...

, conspiracy, and solicitation all require ''mens rea''. On the other hand, committing an offence under the US Racketeer Influenced and Corrupt Organizations Act merely requires "knowing", that is, recklessness. Facilitation also requires "believing", yet another way of saying reckless. Intent may be distinguished from recklessness and criminal negligence as a higher ''mens rea''.

Proof of intent

Specific intent may be inferred from circumstances. It may be proven by the doctrine of "dangerous proximity", while the Model Penal Code requires a "substantial step in a course of conduct".

Merger doctrine

The doctrine of merger has been abandoned in many jurisdictions in cases involving a conspiracy, allowing an accused to be convicted of both conspiracy and the principal offense. However, an accused cannot be convicted of either attempt or solicitation and the principal offense.

Defenses

A number of defences are possible to the charge of an inchoate offense, depending on the jurisdiction and the nature of the offense.

Impossibility

Impossibility is no defence to the crime of attempt where the conditions creating the impossibility are unknown to the actor. Originally at common law, impossibility was a complete defence; as it was under French law at one point. 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. This principle was directly overruled in England with the rulings ''R v Ring'' and ''R v. Brown'' 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 defences are ''

People v. Lee Kong ''People v. Lee Kong'', (1892), is a case in which the defendant claimed the "impossibility" defense to charges of assault, on the basis of a mistake in fact. The ultimate issue in this case is whether the defendant's actions and intent warrant ...

'' (CA, 1892), '' State v. Mitchell'' (MO, 1902), and ''

United States v. Thomas (1962) ''United States v. Thomas'' 13 U.S.C.M.A. 278 (1962) is a famous case of a military court-martial involving a failed attempt to commit a crime, in this case, rape and the use of the impossibility defense, "impossibility" defense. Circumstances T ...

''.

Abandonment

A defendant may plead and prove, as an affirmative defense, that they: # Stopped all actions in furtherance of the crime or conspiracy # Tried to stop the crime as it was ongoing # Tried to convince the co-conspirators to halt such actions, or reported the crime to the police or other authorities

Disputes

Burglaries as inchoate crimes

There is some scholarly treatment of burglaries in American law as inchoate crimes, but this is in dispute. According to scholar

Frank Schmalleger Frank Schmalleger (born August 28, 1947) is a Distinguished Emeritus, Professor Emeritus at the University of North Carolina at Pembroke. He holds degrees from the University of Notre Dame and Ohio State University, The Ohio State University, hav ...

, burglaries "are actually inchoate crimes in disguise."

, ''Criminal Law Today: An Introduction with Capstone Cases,'' p. 110, (Upper Saddle River: Pearson Prentice Hall, 2006) , citing Joshua Dressler, ''Understanding Criminal Law,'' 2nd ed., (Boston:Matthew Bender, 1995), p. 351. 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 The Theft Act 1968c 60 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales. On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deceptio ...

'' in the UK).See Schmalleger, ''Supra'', p. 404. It is clear that:

Examples

Examples of inchoate offenses include conspiracy, solicitation, facilitation, misprision of felony (and misprision generally), organized crime, Racketeer Influenced and Corrupt Organizations Act (RICO), and

, as well as some public health crimes; see the list below.

List of inchoate offenses

* Being an accessory *

—see '' State v. Mitchell'' * Compounding a felony * Compounding treason * Conspiracy *

Criminal facilitation An accessory is a person who assists in, but does not actually participate in, the commission of a crime. The distinction between an accessory and a principal is a question of fact and degree: *The principal is the one whose acts or omissions, ...

* Incitement * Misprision * Misprision of felony * Misprision of treason * Offences under the Racketeer Influenced and Corrupt Organizations Act (RICO) * Solicitation * Stalking *

Mail and wire fraud Mail fraud and wire fraud are terms used in the United States to describe the use of a physical or electronic mail system to defraud another, and are federal crimes there. Jurisdiction is claimed by the federal government if the illegal activit ...

References

External links

* O'Connor, T. (2010-08-15)
"Incomplete (Inchoate) Crimes"
MegaLinks in Criminal Justice. {{Types of crime