demagogue on 21/2/2008 at 00:30
Sounds like one of those freakish questions you'd see on a lawschool exam. I'm not sure that's exactly right, though ...
Factual impossibility isn't a defense to attempt (e.g., if she were alive but it would have been impossible to penetrate for some ghastly reason, but he tried anyway), but legal impossibility is still a defense (e.g., an element of the crime could never be met no matter what). And I'm pretty sure an element of rape requires it to be a "person" (=living). So even if he thought she was alive, and she was dead, it's not possible to ever meet one of the elements ... so it's a defense. It'd be the same analysis if it were a lifelike doll, and a rapist thought it was a real girl. Fortunately there's a separate crime for corpse-fucking.
But anyway, all of this is still marbles to the murder charge ... prior trademark-stabbing incident with evidence putting him there, circumstantial evidence galore ... the window of reasonable doubt is quickly shutting our sensitive rapist out. And of course, if he stabbed her, chances are the rape or attempt to rape began before she died.
Laser Eyes on 21/2/2008 at 01:08
Quote Posted by Myoldnamebroke
your own mistake of fact making it impossible to commit the offense is no defense.
Actually factual impossibility is a complete defence at common law, including to attempt. See Haughton v Smith [1975] AC 476. But it's a defence that's been abolished by statute in some jurisdictions.
Let's see now. Five minutes @$400.00 per hour. TTLG owes me $33.33.
demagogue on 21/2/2008 at 03:01
But none of that matters here because it's legal impossibility (always a defense), not factual.
Myoldnamebroke on 21/2/2008 at 06:45
That's a UK case, and it's be superceded by UK statute so not really relevant.
Quote Posted by Criminal Attempts Act 1981
s.1(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.
which makes impossibility of fact no barrier to getting an actus reus for the offence and
Quote:
s.1(3) In any case where—
(a)apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence; but
(b)if the facts of the case had been as he believed them to be, his intention would be so regarded,
then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.
gives you the mens rea.
It also doesn't seem to be a case of legal impossibility, which as far as I can remember is for attempts to commit something that you thought was a crime but actually isn't, like having sex with a 17 year old believing the age of consent to be 18. You've attempted underage sex but failed, not because your act has failed but because the facts don't contain any actual crime.
The US case I was thinking of was US v Thomas, though on a bit of further reading apparently different states have different views on whether factual impossibility is a defence or not.
t also doesn't seem to be a case of legal impossibility, which as far as I can remember is for attempts to commit something that you thought was a crime but actually isn't, like having sex with a 17 year old believing the age of consent to be 18. You've attempted underage sex but failed, not because your act has failed but because the facts don't contain any actual crime.
-edit- ah, i'm just being dense. i've read my own post and convinced myself i'm wrong. yeah, it's legal impossibility. it's not even close to be contentious. not sure what i was thinking!
demagogue on 21/2/2008 at 06:55
Quote Posted by Myoldnamebroke
It also doesn't seem to be a case of legal impossibility, which as far as I can remember is for attempts to commit something that you thought was a crime but actually isn't
Yes, but that's just it. Having sex with a corpse isn't a crime here, not of rape. (It's the crime of sex with a corpse, but that's a different crime.) Even, like you say, if you thought she was alive and thought it was a crime; it's still not. An essential element is missing (a "person").
It's different from the gun without a bullet; killing him would still be murder, even though you can't do factually it. But penetration of a corpse can never be rape no matter what you do.
...................
Edit: To help my own thinking: On reflection, I think some of the confusion here is that legal impossibility also turns on 'facts'. They're both literally "factually impossibility" (the 18 y.o. age of the girl is also a "fact" that, if you changed it to 14 y.o., would turn sex into a crime).
The real difference seems to be whether the fact-in-question is a necessary element of the crime (in which case it's "legal impossibility", she's really 18 and not 15 when age is essential to "stat rape", it's really a doll or corpse not a girl when a "person" is essential to "rape") vs. the fact-in-question isn't essential (in which case it's "factual impossibility", the gun doesn't have a bullet, the crime of murder doesn't care what you're holding in your hand; it only cares that: now he's alive, now you X, now he's dead. A world with a bulletless-gun can still make that happen; just hit him with it, or use a knife. But a world with an 18 y.o. girl or a corpse can't make stat rape or rape happen because the crime "cares" about those facts; it requires them.)
Does that sound right?
Myoldnamebroke on 21/2/2008 at 07:09
yeah, you're right. i read my own post and realised quite what i was saying. i'm going to blame the time of day and say my head isn't quite switched on ;)
D'Juhn Keep on 23/2/2008 at 00:56
To be honest I just hope he's prosecuted for the rest of the crimes and murders he's obviously commited and never let out
Edit: defending the death penalty itt
june gloom on 23/2/2008 at 01:09
Moot because the guy's in England.
Aerothorn on 23/2/2008 at 13:56
paging RBJ
