United States v. Thomas
Court of Military Appeals, 1962.
Author: Jim

Facts: Defendants were out partying hopping bars and met a girl and at a bar and started dancing.  The girl was drunk and collapsed in defendant’s arms.  The defendants took the unconscious girl to the car and sexual intercourse with her.  When girl didn’t gain consciousness, defendants became concerned and called the police.  It was found that the girl had died right at the moment when she collapsed at the bar and defendant’s had sex with the girl after she had died.

Procedure:  Ds were found guilty of conspiracy to commit rape, attempted rape and lascivious conduct.  The board of review set aside the conviction of attempted rape and conspiracy to commit rape.

Defendant’s Argument:  It was legally impossible for defendants to attempt to rape because the woman was dead.

Issue: Were the defendants guilty of attempted circumstances under the given facts?

Holding: Yes

Rationale:  The courts in the past have distinguished between factual impossibilities and legal impossibilities as defense to attempted crimes.  Legal impossibilities have been accepted as defense and factual impossibilities have not.  But the difference between these two defenses is so unclear that it has led to a lot of confusion.  Under the better and modern MPC rule, not factual and legal impossibility defenses are used and the ct. ruled:  “we are forced to the conclusion that the law of attempts in military jurisprudence has tended toward the advanced and modern position, which position will be achieved for civilian jurisprudence if The American Law Institute is completely successful in its advocacy of this portion of the Model Penal Code.” But, the ct. also stated:  “It is not an attempt when every act intended by the accused could be completed without committing an offense, even though the accused may at the time believe he is committing an offense.”