Inchoate offense

An inchoate offence is the crime of preparing for or seeking to commit another crime. The most common example of an inchoate offence is conspiracy. Inchoate offence has been defined as "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent. This term is also called an inchoate crime.


Every inchoate crime or offense must have the mens rea of intent. Absent a specific law, an inchoate offence 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, he or she must actually intend for that person to die.

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 res ipsa loquitur or "dangerous proximity".

Merger doctrine

A true inchoate offence occurs when the intended crime is not perpetrated since the Doctrine of Merger prohibits charging both, except for conspiracy.


Definitions of inchoate offenses often include certain liguistic constructions that are unusual in the English language.

Infinitive object

The :infinitive object uses a major verb to preface another, untensed, verb used as the object of a clause or sentence. The major verb is almost always a verb of wishing or wanting - wish, want, intend, covet, solicit, conspire, hope, pray, attempt, etc. For example, The accused attempted to commit murder.

Cognate accusative

The cognate accusative is a form of speech that uses a verb and noun with the same cognate or root. For example, to walk the walk and talk the talk, uses two cognate accusatives. An inchoate offense may be described, for example, using this liguistic form by stating, The defendant conspired in the conspiracy.

Imperative case

The imperative case or mood is that form of a sentence or phrase that uses a command. For example, a solicitation may include a command or offer to do a criminal act - Get me some drugs! or Let's do it.


There can be various causes of failing the commission of the underlying crime, for example arrest prior to committing the crime, accident which prevents the crime, or even factual impossibility. For example, the defendant takes a gun that he believes is loaded, points it at the victim, and with the intent to kill the victim, pulls the trigger. The gun is not loaded, however, and the victim runs away. In this case, the defendant would be guilty of the inchoate crime of attempted murder, even though it was actually impossible for the defendant to commit the underlying crime, murder.


There are a number of possible defenses to the charge of an inchoate offense, depending on the jurisdiction and the nature of the offense.


If the underlying crime to be attempted could not have been performed, then a defense to the charge would be that it would be impossible to commit the crime. If a man is hired to commit murder, but before he can get to the victim, the victim drops dead of a heart attack, the murder would have been impossible. If a group of men go to rob a liquor store, and arriving at the (attempted) crime scene, find the building in flames, then again, the crime would have been impossible.

Also, if it would have been impossible for the alleged perpetrator to have committed the crime, that may also be a defense. If a man with no arms is arrested for attempting to beat a man to death with a baseball bat, proof that there is no way he could have lifted or used a baseball bat would be a defense of impossibility.

It should be noted, however, that such impossibility, in the realistic sense, may not be a legal defense under state laws. In Oregon, for example, it is not. Oregon Revised Statutes (ORS) 161.425 states: "Impossibility not a defense. In a prosecution for an attempt, it is no defense that it was impossible to commit the crime which was the object of the attempt where the conduct engaged in by the actor would be a crime if the circumstances were as the actor believed them to be." The group of adventurous perpetrators arriving at the burning liquor store could therefore still be arrested in Oregon for "attempted robbery" of the burning store.

Other cases that illustrate the case law for impossibility defenses are People v. Lee Kong (1892), State v. Mitchell (1902) and United States v. Thomas (1962).


A defendant may plead and prove, as an affirmative defense, that he or she

  1. Stopped any and all actions in furtherence of the crime or conspiracy,
  2. Took efforts to stop the crime as it was ongoing, and
  3. Made an effort to convince the co-conspirators to halt such actions, or to report same to the police or other authroities.

As Mae West once famously said:


Examples of inchoate offences include conspiracy, solicitation, facilitation, misprision of felony, organized crime, and attempt, as well as some public health crimes; see the list below.


List of Inchoate offenses

See also

External links

  • O'Connor, T. (November 3, 2006). In Part of web cited (INCOMPLETE (INCHOATE) CRIMES), MegaLinks in Criminal Justice. Retrieved from APSU website
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