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Concept
Inchoate offense
Summary
An inchoate offense, preliminary crime, inchoate crime or incomplete crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as the following: "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."
Intention (criminal law)
Every inchoate crime or offense must have the mens rea of intent or of recklessness, typically intent. Absent a specific law, an inchoate offense 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 have intended for a person to die.
Attempt, conspiracy, and solicitation all require mens rea.
On the other hand, committing an offence under the US Racketeer Influenced and Corrupt Organizations Act merely requires "knowing", that is, recklessness. Facilitation also requires "believing", yet another way of saying reckless.
Intent may be distinguished from recklessness and criminal negligence as a higher mens rea.
Specific intent may be inferred from circumstances. It may be proven by the doctrine of "dangerous proximity", while the Model Penal Code requires a "substantial step in a course of conduct".
Lesser included offense
The doctrine of merger has been abandoned in many jurisdictions in cases involving a conspiracy, allowing an accused to be convicted of both conspiracy and the principal offense. However, an accused cannot be convicted of either attempt or solicitation and the principal offense.
A number of defences are possible to the charge of an inchoate offense, depending on the jurisdiction and the nature of the offense.
Impossibility defense
Impossibility is no defence to the crime of attempt where the conditions creating the impossibility are unknown to the actor.
Originally at common law, impossibility was a complete defence; as it was under French law at one point.
Official source
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