Ad 1) Most of you correctly pointed out that according to the given
definition (MPC 5.01) Victor could indeed be convicted of attempted murder of
his wife. He has the intent to kill his wife, and by stabbing the doll he
engages in an act he believes to result in her death. Note that this definition
focuses on what the defendant believes to
be the consequences of his action, and not the fact which result can or does
actually occur. You should be aware that the MPC is a recommendation that may
or may not be adopted as statute. In most States Victor would not be convicted
because the law does not recognize that Victor’s act could possibly kill his
wife. It does not make any difference if the wife dies, unless it can be proven
that her death is in fact caused by voodoo (which is impossible).
Ad 2) For Kadish this case falls under “crimes of impossibility,”
parallel to Kadish’s example of Moriarty shooting at a cutout resembling
Sherlock Holmes. Kadish points out that in this case the actor has the intent
to cause harm and acts in a way he or she believes to achieve the harm
intended. The fact that the harm cannot possibly occur is not known to the
actor, nor intended by the actor, nor in his control, but this is a lucky
circumstance for the victim.
Ad 3) Kadish draws attention to the legal practice of inflicting lesser
punishment if by chance the intended harm does not occur. Kadish emphasizes
that in cases of attempts or impossible crimes the actor is acting with intent
to succeed, hence he is responsible for the act in the same way as a person who
achieves the intended result. Here,
Victor acts on his intention to kill his wife, so he does not really act any
differently than a person who intends to kill his wife, aims a gun and pulls
the trigger. Both have the intent and both act with intent, both believe that
their action will cause death, and both do the best to succeed in their act.
The difference is that Victor’s act cannot possibly cause the wife’s death. If
the husband who shoots his wife causes the wife’s death, he will be charged
with murder and receive a severe sentence. If he commits the same act, but by
chance (and not due to his decision) the wife survives, he gets a lesser
punishment, usually half. Most jurisdictions would give Victor either no
punishment or the lesser punishment for attempt. Kadish claims that the
difference in punishment is not related to the actor’s responsibility. Kadish
argues that the doctrine is not rational, because it does not fulfil any of the
purposes of criminal punishment, namely to be a deterrent (on a utilitarian
basis) or to inflict just punishment (retribution). The unintended failure is
in a way rewarded by the diminished punishment. So on both accounts, the
purpose of deterrence and retribution, the doctrine is not “rationally
defensible.”
Ad 4) Please note that throughout the article it appears as if Kadish
wants to abolish the harm doctrine. He does not – he argues that though this
doctrine is not rationally justifiable, it has intuitive appeal. He compares a
parent’s punishment for a child that almost spilled milk with the punishment of
a child that actually spilled milk. This is more obvious if you compare a
teenager who almost crashed the
family car (but the car has no scratch) with a teenager who actually crashed
the family car, even if both cases were the result of the teenage driver
texting while driving. Most likely the teenager who actually crashed the car
would get the more severe punishment.
There are side discussions, which I picked up in some comments. Please
look at my comment on Danny C’s blog for Kadish’s discussion of Nagel, my
comment on Diana S’s blog for reference to People v. Dlugash, and my comment on
Andrew L who brought up the concept of “lex talionis” (an eye for an eye).
