Attempt - Abandonment

Abandonment

Abandonment can also be a defense to either element (mens rea or actus reus) of attempt, if the defendant "walks away" from the crime.

However, many jurisdictions do not recognize abandonment. Courts that do recognize this defense generally apply it only where the defendant completely and voluntarily renounces any criminal purpose (Understanding Criminal Law, J. Dressler, 2006). However, the abandonment is not complete and voluntary where the defendant desists from criminal efforts due to unexpected resistance (e.g., from victims), the discovery of the absence of an instrumentality needed for the completion of the offense, or other circumstances that increase the probability of arrest, or decrease the probability of successful completion of the crime (e.g. proximate arrival of police). Abandonment is also invalid where the defendant simply postpones the criminal plan until another time.

Under the Model Penal Code, the defendant is not guilty of an attempt if they (1) abandon the effort to commit the crime or prevent the crime from being committed, and (2) their behavior manifests a complete and voluntary renunciation of the criminal purpose (MPC § 5.01(4)). However, the renunciation not complete if motivated in whole or part by one of the following:

• They postpone the criminal conduct to a more advantageous time, or to transfer the criminal effort to another but similar objective or victim.
• They are merely reacting to circumstances that increase the probability of detection or apprehension.
• They are reacting to a change in circumstances that makes the crime harder to commit.