Criminal law, the body of law that defines criminal offenses, regulates
the apprehension, charging, and trial of suspected persons, and fixes penalties and
modes of treatment applicable to convicted offenders.
Criminal law is only one of the devices by which organized societies protect the
security of individual interests and ensure the survival of the group. There are, in
addition, the standards of conduct instilled by family, school, and religion; the
rules of the office and factory; the regulations of civil life enforced by
ordinary police powers; and the sanctions available through tort actions. The
distinction between criminal law and tort law is difficult to draw with real
precision, but in general one may say that a tort is a private injury whereas
a crime is conceived as an offense against the public, although the actual victim
may be an individual.
This article treats the principles of criminal law. For treatment of the law of
criminal procedure, see procedural law: Criminal procedure.
Principles of criminal law
The traditional approach to criminal law has been that a crime is an act that is
morally wrong. The purpose of criminal sanctions was to make the offender
give retribution for harm done and expiate his moral guilt; punishment was to be
meted out in proportion to the guilt of the accused. In modern times more
rationalistic and pragmatic views have predominated. Writers of the Enlightenment
such as Cesare Beccaria in Italy, Montesquieu and Voltaire in France, Jeremy
Bentham in Britain, and P.J.A. von Feuerbach in Germany considered the main
purpose of criminal law to be the prevention of crime. With the development of
the social sciences, there arose new concepts, such as those of the protection of
the public and the reform of the offender. Such a purpose can be seen in
the German criminal code of 1998, which admonished the courts that the “effects
which the punishment will be expected to have on the perpetrator’s future life in
society shall be considered.” In the United States a Model Penal Code proposed by
the American Law Institute in 1962 states that an objective of criminal law should
be “to give fair warning of the nature of the conduct declared to constitute an
offense” and “to promote the correction and rehabilitation of offenders.” Since that
time there has been renewed interest in the concept of general prevention,
including both the deterrence of possible offenders and the stabilization and
strengthening of social norms.
Common law and code law
Important differences exist between the criminal law of most English
speaking countries and that of other countries. The criminal law of England and the
United States derives from the traditional English common law of crimes and has
its origins in the judicial decisions embodied in reports of decided cases. England
has consistently rejected all effort toward comprehensive legislative codification of
its criminal law; even now there is no statutory definition of murder in English law.
Some Commonwealth countries, however, notably India, have enacted criminal
codes that are based on the English common law of crimes.
The criminal law of the United States, derived from the English common law, has
been adapted in some respects to American conditions. In the majority of the U.S.
states, the common law of crimes has been repealed by legislation. The effect of
such actions is that no person may be tried for any offense that is not specified in
the statutory law of the state. But even in these states the common-law principles
continue to exert influence, because the criminal statutes are often simply
codifications of the common law, and their provisions are interpreted by reference
to the common law. In the remaining states prosecutions for common-law offenses
not specified in statutes do sometimes occur. In a few states and in the federal
criminal code, the so-called penal, or criminal, codes are simply collections of
individual provisions with little effort made to relate the parts to the whole or to
define or implement any theory of control by penal measures.
In western Europe the criminal law of modern times has emerged from various
codifications. By far the most important were the two Napoleonic codes, the Code
d’instruction criminelle of 1808 and the Code pénal of 1810. The
latter constituted the leading model for European criminal legislation throughout
the first half of the 19th century, after which, although its influence in Europe
waned, it continued to play an important role in the legislation of certain Latin
American and Middle Eastern countries. The German codes of 1871 (penal code)
and 1877 (procedure) provided the models for other European countries and have
had significant influence in Japan and South Korea, although after World War
II the U.S. laws of criminal procedure were the predominant influence in the latter
countries. The Italian codes of 1930 represent one of the most technically
developed legislative efforts in the modern period. English criminal law has
strongly influenced the law of Israel and that of the English-speaking African
states. French criminal law has predominated in the French-speaking African
states. Italian criminal law and theory have been influential in Latin America.
Since the mid-20th century the movement for codification and law reform has
made considerable progress everywhere. The American Law Institute’s Model
Penal Code stimulated a thorough reexamination of both federal and state criminal
law, and new codes were enacted in most of the states. England enacted several
important reform laws (including those on theft, sexual offenses, and homicide), as
well as modern legislation on imprisonment, probation, suspended sentences,
and community service. Sweden enacted a new, strongly progressive penal code in
1962. In Germany a criminal code was adopted in 1998 following the reunification
of East and West Germany. In 1975 a new criminal code came into force
in Austria. New criminal codes were also published in Portugal (1982)
and Brazil (1984). France enacted important reform laws in 1958, 1970, 1975, and
1982, as did Italy in 1981 and Spain in 1983. Other reforms have been under way
in Finland, the Netherlands, Belgium, Switzerland, and Japan. The republics
formerly under the control of the Soviet Union also have actively revised their
criminal codes,
including Hungary (1961), Bulgaria (1968), Uzbekistan (1994), Russia (1996), Pol
and (1997), Kazakhstan (1997), Ukraine (2001), and Romania (2004).
Comparisons between the systems of penal law developed in the western European
countries, and those having their historical origins in the English common law
must be stated cautiously. Substantial variations exist even among the nations that
adhere generally to the Anglo-American system or to the law derived from the
French, Italian, and German codes. In many respects, however, the similarities of
the criminal law in all states are more important than the differences. Certain forms
of behaviour are everywhere condemned by law. In matters of mitigation and
justification, the continental law tends to be more explicit and articulate than the
Anglo-American law, although modern legislation in countries adhering to the
latter has reduced these differences. Contrasts can be drawn between the
procedures of the two systems, yet even here there is a common effort to provide
fair proceedings for the accused and protection for basic social interests.
Substantive criminal law
Substantive criminal law is composed of the following elements: the definitions of
the types of offenses that are held to be punishable; the classification of crimes (as,
for example, felonies and misdemeanours in the United States, or crime, délit,
and contravention in continental law); the principles and doctrines applied to the
judgment of crime that qualify the provisions of criminal legislation (such as self-
defense, necessity, insanity, and so forth); and principles determining national
jurisdiction over crimes with an international aspect (crimes committed by
foreigners, by nationals abroad, or on ships and aircraft outside the national
territory and waters).
The definition of criminal conduct
Legality
The principle of legality is recognized in almost all legal systems throughout the
world as the keystone of the criminal law. It is employed in four senses. The first is
that there can be no crime without a rule of law; thus, immoral or antisocial
conduct not forbidden and punished by law is not criminal. The law may be
customary, as in some common-law countries; in most countries, however, the
only source of criminal law is a statute (nullum crimen sine lege, “no crime without
a law”).
Second, the principle of legality directs that criminal statutes be interpreted strictly
and that they not be applied by analogical extension. If a criminal statute
is ambiguous in its meaning or application, it is often given a narrow interpretation
favourable to the accused. This does not mean that the law must be interpreted
literally if to do so would defeat the clear purpose of the statute. The Model Penal
Code incorporates a provision that was enacted in some U.S. state laws. The code
recommends that its provisions be construed “according to the fair import of their
terms,” which comes closer to the European practice.
Third, the principle of legality forbids the application of the law retroactively. In
order that a person may be convicted, a law must have been in effect at the time the
act was committed. This aspect of the principle is embodied in the ex post
facto provisions of the U.S. Constitution and such international treaties as
the European Convention for the Protection of Human Rights and Fundamental
Freedoms (adopted 1950) and the International Covenant on Civil and Political
Rights (entered into force 1976). It is also embodied in the Rome Statute creating
the International Criminal Court (ICC; ratified 2002).
Fourth, the language of criminal statutes must be as clear and unambiguous as
possible in order to provide fair warning to the potential lawbreaker. In some
countries statutes may even be considered inapplicable if they are vague.
Protection against double jeopardy
Legal systems generally include some restriction against prosecuting a person
more than once for the same offense. In Anglo-American law the most difficult
problems of double jeopardy involve the question of whether the second
prosecution is for the “same” or a “different” offense. It is held that acquittal
or conviction of an offense prohibits subsequent prosecution of a lesser offense
that was included in the first. According to the U.S. Supreme Court
in Blockburger v. United States, 284 U.S. 299, 304 (1932), the test to be applied to
determine whether there are two offenses or only one is whether each provision
requires proof of a fact that the other does not. In continental European law, on the
other hand, the question is whether the second prosecution concerns the same
“material fact” or “historical event,” and the state cannot subject a person to a
second trial for any offense arising out of the same factual situation.
A problem under the federal system of the United States is whether an offender
may be prosecuted under both state and federal law for the same conduct (the
specific offenses being different). A number of state laws have prohibited state
prosecutions after acquittals or convictions in a federal court or in the court of
another state for offenses involving the same conduct. However, the U.S. Supreme
Court has held that such multiple prosecutions by separate sovereigns are not
prohibited by the double jeopardy clause of the Fifth Amendment to the U.S.
Constitution.
Statutes of limitation
All systems of law have statutes restricting the time within which legal
proceedings may be brought. The periods prescribed may vary according to the
seriousness of the offense. In German law, for example, the periods range from 3
years for minor offenses to 30 years for crimes involving a life sentence. General
statutes limiting the times within which prosecutions for crimes must be begun are
common in continental Europe and the United States. In England there is no
general statute of limitations applicable to criminal actions, although statutes for
specific crimes frequently have included time limits.
In many countries there are no statutes of limitations for particularly heinous
offenses, including capital felonies in the United States
and genocide and murder in Germany. In 1968 the UN General Assembly adopted
a Convention on the Non-applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity. Similarly, there is no statute of limitations for
prosecutions of the offenses of genocide, crimes against humanity, and war
crimes under the Rome Statute creating the ICC.
Requirements of jurisdiction
The jurisdiction of a court refers to its capacity to take valid legal action. All
governments claim territorial jurisdiction over crimes committed wholly or partly
within their territory, including flag vessels (i.e., vessels registered in that country)
and embassies. The Tokyo Convention on Offences and Certain Other Acts
Committed on Board Aircraft (1963) and the Hague Convention for the
Suppression of Unlawful Seizure of Aircraft (1970) recognize that states have the
right and even the duty of jurisdiction with respect to any crime committed upon
aircraft registered in that state. Most nation-states also claim nationality
jurisdiction over certain crimes committed by their nationals, even when they were
committed in other countries. A third jurisdictional basis is known as protective-
principal jurisdiction, which gives criminal jurisdiction over offenses committed
against national interests. For example, persons who forge currency of a country
may commit a crime against that country even if the forgeries are executed beyond
the borders by persons who are not citizens. A fourth jurisdictional basis of late
20th-century origin and with less universal acceptance is similar to the third and is
known as passive-personality jurisdiction. In certain circumstances, violent crimes
against nationals may give rise to jurisdiction even if the crimes occur beyond the
borders and the offenders are not nationals. For example, when in 1985 the United
States attempted to arrest the hijackers on the Italian cruise ship MS Achille
Lauro because of the brutal shipboard murder of American citizen Leon
Klinghoffer, the claimed jurisdiction of the U.S. over the hijackers may have been
based on passive personality. Finally, international law recognizes that there are
universal jurisdiction crimes that may be tried by any country, regardless of where
the crimes occurred or the nationality of the offenders or the victims. A long-
accepted example of universal crimes giving jurisdiction to all national courts
is piracy on the high seas; all countries have jurisdiction to try pirates. In the 20th
century, war crimes, crimes against humanity, genocide, and torture were added to
the list of crimes giving rise to universal jurisdiction.
Most legal systems do not exercise the full range of jurisdiction they might claim.
In U.S. law, for example, Congress has passed statutes permitting prosecutions
under all of the jurisdictional bases listed above. However, the jurisdiction of the
federal courts is generally limited to acts occurring in whole or in part within the
boundaries of the United States unless extraterritorial jurisdiction is expressly
granted or implied by the statute creating the crime. The U.S. Supreme Court held
in U.S. v. Bowman (1922) that most crimes enacted by Congress are to be read as
covering only acts committed in the United States. However, this is not true of
“criminal statutes which are, as a class, not logically dependent on their locality for
the government’s jurisdiction.” U.S. states, while they may have some
justifications for asserting extraterritorial jurisdiction, almost exclusively limit
criminal jurisdiction to the territorial basis. However, the crime need not be
completed within the state. Where, for example, an offender fires a bullet across a
state border, striking a victim in a second state, who dies in a third, each of the
three states may have territorial jurisdiction to try the offender.
Nationals who commit crimes in foreign countries may be extradited but only if
required or authorized by treaty with the country concerned. The constitutions and
laws of some countries prohibit their nationals from being extradited to other
countries. For example, motion-picture director Roman Polanski fled to France in
1978 to avoid being imprisoned for child sexual assault in California. Because he
held dual French and Polish citizenship, he avoided extradition.
The elements of crime
It is generally agreed that the essential ingredients of any crime are (1) a voluntary
act or omission (actus reus), accompanied by (2) a certain state of mind (mens
rea). An act may be any kind of voluntary human behaviour. Movements made in
an epileptic seizure are not acts, nor are movements made by a somnambulist
before awakening, even if they result in the death of another person. Criminal
liability for the result also requires that the harm done must have been caused by
the accused. The test of causal relationship between conduct and result is that the
event would not have happened the same way without direct participation of the
offender.
Criminal liability may also be predicated on a failure to act when the accused was
under a legal duty to act and was reasonably capable of doing so. The legal duty to
act may be imposed directly by statute, such as the requirement to file an income
tax return, or it may arise out of the relationship between the parties, as the
obligation of parents to provide their child with food.
The mental element
Although most legal systems recognize the importance of the guilty mind, or mens
rea, the statutes have not always spelled out exactly what is meant by this concept.
The Model Penal Code has attempted to clarify the concept by reducing the variety
of mental states to four. Guilt is attributed to a person who acts “purposely,”
“knowingly,” “recklessly,” or, more rarely, “negligently.” Broadly speaking, these
terms correspond to those used in Anglo-American courts and continental
European legal theory. Singly or in combination, they appear largely adequate to
deal with most of the common mens rea problems. They have been adopted
literally or in substance by a majority of U.S. states and clarify and rationalize a
major element in the substantive law of crimes. Under the Model Penal Code and
in most states, most crimes require a showing of “purposely,” “knowingly,” or
“recklessly.” Negligent conduct will support a conviction only when the definition
of the crime in question includes it.
Liability without mens rea
Some penal offenses do not require the demonstration of culpable mind on the part
of the accused. These traditionally include statutory rape, in which knowledge that
the child is below the age of consent is not necessary to liability. There is also a
large class of “public welfare offenses,” involving such things as economic
regulations or laws concerning public health and safety. The rationale for
eliminating the mens rea requirement in such offenses is that to require the
prosecution to establish the defendant’s intent, or even negligence, would render
such regulatory legislation largely ineffective and unenforceable. Such cases are
known in Anglo-American law as strict liability offenses, and in French law
as infractions purement matérielles. In German law they are excluded because the
requirement of mens rea is considered a constitutional principle.
There has been considerable criticism of statutes that create liability without
actual moral fault. To expose citizens to the condemnation of a criminal conviction
without a showing of moral culpability raises issues of justice. In many instances
the objectives of such legislation can more effectively be achieved by civil
sanctions, as, for example, suits for damages, injunctions, and the revocation of
licenses.
Ignorance and mistake
In most countries the law recognizes that a person who acts in ignorance of the
facts of his action should not be held criminally responsible. Thus, one who takes
and carries away the goods of another person, believing them to be his own, does
not commit larceny, for he lacks the intent to steal. Ignorance of the law, on the
other hand, is generally held not to excuse the actor; it is no defense that he was
unaware that his conduct was forbidden by criminal law. This doctrine is supported
by the proposition that criminal acts may be recognized as harmful and immoral by
any reasonable adult.
The matter is not so clear, however, when the conduct is not obviously dangerous
or immoral. A substantial body of opinion would permit mistakes of law to be
asserted in defense of criminal charges in such cases, particularly when the
defendant has in good faith made reasonable efforts to discover what the law is.
In West Germany the Federal Court of Justice in 1952 adopted the proposition that
if a person engages in criminal conduct but is unaware of its criminality, that
person cannot be fully charged with a criminal offense; this has since been
incorporated as rule in the German criminal code. Law and practice
in Switzerland are quite similar. In Austria mistake of law is a legal defense. In the
U.S. the Model Penal Code would allow a defense of mistake of law, but this
would rarely include a mistake such as the existence or meaning of the law
defining the crime itself.
Responsibility
It is universally agreed that in appropriate cases persons suffering from serious
mental disorders should be relieved of the consequences of their criminal conduct.
A great deal of controversy has arisen, however, as to the appropriate legal tests of
responsibility. Most legal definitions of mental disorder are not based on modern
concepts of medical science, and psychiatrists accordingly find it difficult to make
their knowledge relevant to the requirements of the court.
Various attempts have been made to formulate a new legal test of responsibility.
The Model Penal Code endeavoured to meet the manifold difficulties of this
problem by requiring that the defendant be deprived of “substantial capacity either
to appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law” as a result of mental disease or defect. This resembles the
Soviet formulation of 1958, which required a mental disease as the medical
condition and incapacity to appreciate or control as the psychological condition
resulting from it. The same may be said of the German law, although the latter
includes in mental illness such disorders as psychopathy and neurosis in addition to
psychoses and provides for various gradations of diminished responsibility.
Several U.S. jurisdictions, including federal law, have abandoned the volitional
prong of the insanity test and returned to the ancient English rule laid down
in M’Naghten’s Case (1843) 8 Eng. Rep. 718, 722. According to that case, an
insane person is excused only if he did not know the nature and quality of his act or
could not tell right from wrong. The English Homicide Act of 1957 also
recognizes diminished responsibility, though to less effect. The act provides that a
person who kills another shall not be guilty of murder “if he was suffering from
such abnormality of mind…as substantially impaired his mental responsibility for
his acts or omissions in doing or being a party to the killing.” The primary effect of
this provision is to reduce an offense of murder to one of manslaughter.
Intoxication is usually not treated as mental incapacity. Soviet law was especially
harsh; it held that the mental-disease defense was not applicable to persons who
committed a crime while drunk and that drunkenness might even be an aggravating
circumstance. American law is similar. In German law, on the other hand,
intoxication like any other mental defect is acceptable as a defense in criminal
cases.
Mitigating circumstances and other defenses
The law generally recognizes a number of particular situations in which the use
of force, even deadly force, is excused or justified. The most important body of law
in this area is that which relates to self-defense. In general, in Anglo-American
law, one may kill an assailant when the killer reasonably believes that he is
in imminent peril of losing his life or of suffering serious bodily injury and that
killing the assailant is necessary to avoid imminent peril. Some jurisdictions
require that the party under attack must try to retreat when this can be done without
increasing the peril. Under many continental European laws and in most U.S.
states, however, the defendant may stand his ground unless he has provoked his
assailant purposely or by gross negligence or unless the assailant has some
incapacity such as inebriation, mistake, or mental disease. Other situations in
which the use of force is generally justifiable, both in Anglo-American law and in
continental European law, include the use of force in defense of others, in law
enforcement, and in defense of one’s dwelling. Use of force in the protection of
other property is sometimes limited to nonlethal force.
The use of force may also be excused if the defendant reasonably believed himself
to be acting under necessity. The doctrine of necessity in Anglo-American law
relates to situations in which a person, confronted by the overwhelming pressure of
natural forces, must make a choice between evils and engages in conduct that
would otherwise be considered criminal. In the oft-cited case of United
States v. Holmes, in 1842, a longboat containing passengers and members of the
crew of a sunken American vessel was cast adrift in the stormy sea. To prevent the
boat from being swamped, members of the crew threw some of the passengers
overboard. In the trial of one of the crew members, the court recognized that such
circumstances of necessity may constitute a defense to a charge of
criminal homicide, provided that those sacrificed be fairly selected, as by lot.
Because this had not been done, a conviction for manslaughter was returned. The
leading English case, Regina v. Dudley and Stephens (1884) 14 Q.B.D. 273,
appears to reject the necessity defense in homicide cases. In German or French
courts, however, the defendants would probably have been acquitted.
In general, the use of nonlethal force may be excused if the defendant reasonably
believed himself to be acting under duress or coercion. Lethal force may be
justified if the defendant was carrying out military orders he believed to be lawful.
Some particular offenses
All advanced legal systems condemn as criminal the sorts of conduct described in
the Anglo-American law as treason, murder, aggravated
assault, theft, robbery, burglary, arson, and rape. With respect to
minor police regulations, however, substantial differences in the definition of
criminal behaviour occur even between jurisdictions of the Anglo-American
system. Comparisons of the continental European criminal law with that based on
the English common law of crimes also reveal significant differences in the
definition of certain aspects of more serious crimes. Continental European law, for
example, frequently articulates grounds for mitigation involving considerations
that are taken into account in the Anglo-American countries only in the exercise of
discretion by the sentencing authority or by lay juries. This may be illustrated with
respect to so-called mercy killings. The Anglo-American law of murder recognizes
no formal grounds of defense or mitigation in the fact that the accused killed to
relieve someone of suffering from an apparently incurable disease. Many
continental European and Latin American codes, however, provide for mitigation
of offenses prompted by such motives and sometimes even recognize in such
motives a defense to the criminal charge.
Degrees of participation
The common-law tradition distinguishes four degrees of participation in crime.
One who commits the act “with his own hand” is a principal in the first degree. His
counterpart in French law is the auteur (literally, “author”), or coauteur when two
or more persons are directly engaged. A principal in the second degree is one who
intentionally aids or abets the principal in the first degree, being present when the
crime occurs; this is comparable to the French concept of complicité par aide et
assistance, although in some countries, as, for example, Germany, that have
adopted a wider (more subjective) interpretation of the concept, it includes the
activity of coauteurs. In Anglo-American law one who instigates, encourages,
or counsels the principal without being present during the crime is called
an accessory before the fact; in continental law this third degree of participation is
covered partly by the concept of instigation and partly by the above-
mentioned aide et assistance. The fourth and last degree of participation is that of
accessory after the fact, who is punishable for receiving, concealing, or comforting
one whom that person knows to have committed a crime so as to obstruct the
criminal’s apprehension or to otherwise obstruct justice. In continental legal
systems this conduct has become a separate offense. Italian and Austrian law treat
all participants in a crime as principals in the first degree, with the exception of
accessories after the fact. The Model Penal Code and the law in most U.S. states
treat the actions of an accessory after the fact as a separate statutory offense. In the
other three degrees of participation, the accessory is treated as a principal in the
first degree.
Conspiracy
Under the common law, conspiracy is usually described as an agreement between
two or more persons to commit an unlawful act or to accomplish a lawful end by
unlawful means. This definition is delusively simple, however, for each of its terms
has been the object of extended judicial exposition. Criminal conspiracy is perhaps
the most amorphous area in the Anglo-American law of crimes. In some
jurisdictions, for example, the “unlawful” end of the conspiracy need not be one
that would be criminal if accomplished by a single individual, but courts have not
always agreed as to what constitutes an “unlawful” objective for these purposes.
Statutory law in some American states, following the lead of the Model Penal
Code, have limited conspiracy offense to the furtherance of criminal objectives.
The European codes have no conception of conspiracy as broad as that found in the
Anglo-American legal system. In some of the continental European countries, such
as France or Germany, punishment of crimes may be enhanced when the offense
was committed by two or more persons acting in concert.
In most countries the punishment of agreements to commit offenses, irrespective of
whether the criminal purpose was attempted or executed, is largely confined to
political offenses against the state. Some extension of the conspiracy idea to other
areas has occurred, however. Thus, in the Italian code of 1930, association for the
purpose of committing more than one crime was made criminal. None of these
continental European provisions, however, has the generality of the original
Anglo-American concept. None, for example, condemns agreements to achieve
objectives not otherwise criminal.
Attempt
In Anglo-American law there is a class of offenses known as inchoate, or
preliminary, crimes because guilt attaches even though the criminal purpose of the
parties may not have been achieved. Thus, the offense
of incitement or solicitation consists of urging or requesting another to commit a
crime. Certain specified types of solicitation may be criminal, such as solicitation
of a bribe, solicitation for immoral purposes, or incitement of members of the
armed forces to mutiny. The Model Penal Code also treats conspiracy as an
inchoate crime, as do a number of U.S. states. Other states and federal law treat
conspiracy as a separate principal offense, sometimes punishing it more severely
than the crime that is the object of the conspiracy. For example, the U.S. Supreme
Court in Clune et al. v. U.S. (1895) affirmed a sentence of two years’
imprisonment for conviction of conspiracy to obstruct the passage of the mails,
although the maximum sentence for the crime of obstructing the mails itself would
have been a fine only, not to exceed $100.
The most important category of inchoate offenses is attempt, which consists of any
conduct intended to accomplish a criminal result that fails of consummation but
goes beyond acts of preparation to a point dangerously close to completion of the
intended harm. The line between acts of mere preparation and attempt is difficult
to draw in many cases. In continental European and some Anglo-American legal
systems, attempt may also consist of conduct that would be criminal if the
circumstances were as the actor believed them to be. A defense of “impossibility”
is recognized only if the mistake is shown to be absolutely unreasonable. Unlike
the law of some continental European countries, no defense has traditionally been
granted to an offender who voluntarily desists from committing the intended harm
after that person’s conduct has reached a point beyond mere preparation. The
Model Penal Code and several American state codes, however, provide for
an affirmative defense if it can be shown that the actor “abandoned his effort to
commit the crime or otherwise prevented its commission, under
circumstances manifesting a complete and voluntary renunciation of his criminal
purpose.” See also criminology.
