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United States v. Thomas

Brief Fact Summary.

Defendants had intercourse with a corpse believing the girl to be alive. Defendants contested the charge of attempted rape based on factual or alternatively legal impossibility assertion.

Synopsis of Rule of Law.

The crime of attempt has become one of criminal purpose implemented by an overt act strongly corroborative of such purpose.


Defendants were bar hopping on the evening in question. At one bar they met a girl who subsequently collapsed on the dance floor. Defendant carried her off the dance floor and took her to his car. Each Defendant attempted to have intercourse with the girl who remained unresponsive. Becoming concerned with her lack of consciousness, Defendants called for help and when the police arrived, they determined the girl was dead. An autopsy revealed that she died of heart failure and most likely died immediately after collapsing on the dance floor or shortly thereafter. Defendants were convicted of attempted rape. The Board reversed and found them guilty of lewd and lascivious conduct.


Whether Defendants can be found guilty of attempted rape when it was a factually and legally impossible to actually commit the crime.


Reversed, the fact that the victim was already dead is no bar to a charge of attempted rape.
It is not an attempt when every act intended b the accused could be completed without committing an offense, even though the accused may at the time believe his is committing a crime.

The crime of attempt has become one of criminal purpose implemented by an overt act strongly corroborative of such purpose.


Judge Ferguson concurred in part and dissented in part.
Defendants’ conviction of attempted rape must be vitiated on the basis of legal impossibility. In this case, there is simply no victim that the law is meant to protect.

The majority unnecessarily emphasizes the mental state of the Defendants at the expense of what they actually did.


The Court conducted an in depth review of the case law in civilian courts on factual and legal impossibility and noted that it was murky and subject to several interpretations. The Court noted that in cases involving a legal impossibility (person accepting goods he thought were stolen, but were in fact not); convictions have been set aside because the crime was legally impossible. The Court contrasted this with factual impossibilities, (person thought he had narcotics, but really had powder) where the convictions have been upheld. The Court concluded that it would align itself with the new draft of the Model Penal Code, which would allow convictions for attempts even though outside Defendants’ control, it was impossible to commit the crime contemplated.

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