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If not, does this mean that, for example, DUI when there is no one else on the roadway, should not be illegal?

What about attempted murder, in a case where the intended victim does not know about the attempt and no one suffers any actual harm (e.g. intended victim had his back turned to you and gun jams)?

asked Oct 25 '12 at 08:34

anthony's gravatar image

anthony
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edited Oct 26 '12 at 06:36

I think there's big difference between victimless crime (e.g., statutory rape, not wearing a motorcycle helmet) vs. attempted murder where there IS a target.

(Oct 25 '12 at 11:39) Humbug Humbug's gravatar image

Can you elaborate on that?

It is certainly possible for someone to be convicted of attempted murder without having had a (living, human) "target". (For instance, in most states one can be convicted of attempted murder for shooting a mannequin which one believes to be a person.)

Whereas statutory rape necessarily does have a (living, human) victim.

But I don't think that was the big difference you were getting at.

(Oct 25 '12 at 22:40) anthony anthony's gravatar image

Where there is no victim, there is no crime, philosophically speaking.

But just because no-one gets physically harmed, that doesn't mean there's no victim.

The object of a moral government is to protect individuals from the initiation of physical force. The initiation of physical force includes credible threats of physical harm.

Willfully placing someone in danger, such as even simply aiming a gun at them, without firing it, is a form of initiating physical force against a person. It is, because it physically takes control of their life while the gun is pointed at them.

It doesn't matter if they don't get hurt. Simply being forced, for several seconds, by the point of a gun, is a form of harm that is to be outlawed by a rational government.

Being a credible threat is not allowed in civil society. Attempted murder, of any kind, demonstrates that you are a credible threat to the victim, even if the victim is nowhere near the actual act of attempted murder (e.g. you are shooting a mannequin which you thought was the victim.)

answered Oct 26 '12 at 09:49

John%20Paquette's gravatar image

John Paquette ♦
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You say that credible threats of physical harm are the initiation of physical force. I agree. On the other hand, that's why I mentioned that the intended victim had his back turned, and did not notice the gun being pointed at him.

In the case of the mannequin, my hypothetical was that there was no actual intended victim. You walk into a room, see a mannequin, think it's a human, and shoot it. Or are out hunting, think you see a human, and shoot.

Perhaps a more realistic situation (actually, one that has occurred many times), would be when one shoots a corpse. (e.g. People v. Dlugash)

(Oct 26 '12 at 13:15) anthony anthony's gravatar image

Another hypothetical, on which there are many actual cases (see http://enwp.org/To_Catch_a_Predator), would be a case where someone chats over the Internet with someone he believes to be a 13-year-old child. He convinces the person to come over to his house to engage in sexual intercourse. When the person arrives, the "child" turns out to be a 45-year-old undercover police officer. The person is not guilty of luring a minor, because the police officer was not a minor. However, the person is charged, and often convicted, of attempting to lure a minor, even though there was no actual victim.

(Oct 26 '12 at 13:26) anthony anthony's gravatar image

The law, increasingly in modern cases, though even in some historical ones, does not require that there be an actual intended victim in order to convict someone of an inchoate crime. The "intended victim", in some cases, is but a figment of the imagination of the convicted criminal.

(Oct 26 '12 at 13:28) anthony anthony's gravatar image

A threat to a person need not be noticed by that person to be a threat. Aiming a gun at a person who has his back turned threatens his life. He is an unknowing victim.

In your mannequin case, there is an intended victim -- a non-specified person. It's not a specific victim, but a victim was intended. It is only if you prove that you knew the mannequin is not a person that you are innocent of attempted murder.

The same situation is true if you shoot a corpse (thinking it is still alive). That's clearly attempted murder.

The same principle applies to attempting to lure a minor.

(Oct 26 '12 at 14:21) John Paquette ♦ John%20Paquette's gravatar image

The actual victim in each of the above cases, is anyone who might have filled the role of the person the criminal was intending to harm.

The basic principle is that to risk harming someone, without his consent, is to harm him. A risk of harm is a threat. A threat is an injury -- an indirect form of injury.

Beyond this, I'm going to have to defer to philosophers of law.

(Oct 26 '12 at 14:24) John Paquette ♦ John%20Paquette's gravatar image

I don't agree with you (*), but thank you for this answer.

(*) An non-specified victim would be an actual person, whose identity is not specified, not a figment of the defendant's imagination (a non-existent victim).


"It is only if you prove that you knew the mannequin is not a person that you are innocent of attempted murder."

Surely the burden of proof is on the prosecution, to prove intent beyond a reasonable doubt.

You seriously believe that anyone who shoots a mannequin has to prove that they knew it was a mannequin and not a person?

(Oct 26 '12 at 14:30) anthony anthony's gravatar image

Would you use the same argument for the reckless DUI driver, when there is no one else on the roadway (no one actually threatened by harm)? The victim is the "non-specified hypothetical person" that could possibly be there?

Does it matter if the DUI driver believes there are others on the road? if s/he believes there probably are others on the road, but isn't sure?

You say in another answer that drunk driving is "effectively a form of assault on everyone one drives near". The question is what if no one else actually does come near.

(Oct 26 '12 at 14:54) anthony anthony's gravatar image

"You seriously believe that anyone who shoots a mannequin has to prove that they knew it was a mannequin and not a person?"

Yes, if there is good reason to believe they DID think it was a person.

"Would you use the same argument for the reckless DUI driver, when there is no one else on the roadway (no one actually threatened by harm)? The victim is the "non-specified hypothetical person" that could possibly be there?"

If no-one is actually threatened, there is no crime. But that would only be the case if the road were closed. Being on an open road, DUI, is a threat to every driver.

(Oct 26 '12 at 15:00) John Paquette ♦ John%20Paquette's gravatar image

"If no-one is actually threatened, there is no crime. But that would only be the case if the road were closed. Being on an open road, DUI, is a threat to every driver."

Every driver in the world? Or every driver on that road at that time. The hypo is that there are no other drivers on that road at that time. (Just a helicopter in the sky observing the driver.)

(Oct 26 '12 at 15:14) anthony anthony's gravatar image

"If no-one is actually threatened, there is no crime."

No one is actually threatened when the defendant shoots the corpse, or the mannequin. Or a tree stump (Regina v. McPherson). Or when a person "attempts to pick the pocket of a stone image". (Trent v. Com. , 156 S.E. 567)

(Note that in some of these hypotheticals or actual scenarios the courts have found a lack of guilt. The courts are somewhat split about what constitutes a defense of legal impossibility, and have shifted over time. In the case of the shooting of the corpse I can find precedent for both sides.)

(Oct 26 '12 at 15:24) anthony anthony's gravatar image

I don't know case law. I just think that if a man destroys a mannequin, thinking it is a person, such should be construed as an attempt to murder a person, because that's exactly what it is.

DUI on an open road is a potential threat to anyone who has the legal privilege of being able to use that road. So, I'd call this doubly-indirect harm (since a threat is potential harm).

DUI on an open (and clear) road is clearly not as serious as DUI on a crowded road.

(Oct 26 '12 at 18:16) John Paquette ♦ John%20Paquette's gravatar image

But you do have me questioning. . . why is mental content relevant if you destroy a mannequin?

(Oct 26 '12 at 18:18) John Paquette ♦ John%20Paquette's gravatar image

Anthony. You may find this interesting.

Moral Luck

(Oct 26 '12 at 19:15) Humbug Humbug's gravatar image

It's interesting that you seem to think the mannequin hypo is clearly attempting to murder a person, whereas I think it clearly is not.

I'm not sure why this is happening, but maybe the difference is that I'm treating the phrase as extensional and you're treating it as intensional?

What do you think of this hypothetical? Let's say a doctor believes that abortion is murder, and then that doctor performs an abortion. Is the doctor guilty of attempted murder?

(Oct 26 '12 at 20:49) anthony anthony's gravatar image

Thanks for the Moral Luck link. I have read this before, in the past, and in fact I thought of it when asking this question, and my previous one about justifications of punishment. Bringing it back to John's question as to why mental content is relevant, the usual response is based on utilitarian theories, and borders on advocating thought-crime.

That said, I'm new to the problem, and haven't worked it out yet, which is why I'm asking about it here. (And it's perfectly fine if you don't know case law - it might even be an advantage as it enables you to think solely about the moral issues.)

(Oct 26 '12 at 20:56) anthony anthony's gravatar image

Should it be a crime if I don't where a helmet on a motorcycle? Or a seatbelt in a car? I don't see a victim there.

(Oct 28 '12 at 01:22) Collin1 Collin1's gravatar image

But does it matter whether or not there's a victim? And how do we determine whether or not there's a victim?

(Oct 28 '12 at 09:25) anthony anthony's gravatar image

OK, I think I get it: "A crime is a violation of the right(s) of other men by force (or fraud)."

So victim, at least in this context, means a person other than the defendant whose rights are violated.

By destroying a mannequin, thinking that it is a person, we violate the right of anyone who had a right to be in that place at that time?

(Oct 28 '12 at 10:13) anthony anthony's gravatar image

Here's the problem. When we're dealing with unowned land, all of society has a right to be in that place at that time. So the crime of attempt would be a crime against society. And Rand has said that "There are no “crimes against society”—all crimes are committed against specific men, against individuals". (http://aynrandlexicon.com/lexicon/crime.html)

Perhaps Rand was wrong about this?

(Oct 28 '12 at 10:16) anthony anthony's gravatar image

I don't think AR was wrong when she said "there are no crimes against society", but I think she was emphasizing that there's no such existent as society as such that might be wronged.

I just think that if you don't close a road, and then you drive drunk on it, you are creating a hazard for anyone who might use the road. A hazard is a threat. It's like putting a pit-trap in an open park -- even if no-one drops into it, it still should be illegal.

Now, if you walk into a store and shoot the clerk, later discovering that the clerk was a mannequin, perhaps that's not attempted murder.

(Oct 28 '12 at 15:27) John Paquette ♦ John%20Paquette's gravatar image

. . . Perhaps it is only the discharge of a firearm in a public place. Now I'm leaning towards the content of your mind not mattering.

But the word "attempted" specifically refers to mental content -- your intentions. But should intentions matter? I can understand the view that ones intentions might be irrelevant -- that what actually happens is all that matters. Hard stuff. I don't have an answer.

(Oct 28 '12 at 15:30) John Paquette ♦ John%20Paquette's gravatar image

Well, the word "attempted" is an action concurrent with a state of mind. The dictionary definition is "to make an effort at; try".

Anyway, I think the question is whether the phrase "attempt to murder" is to be taken de dicto or de re. The person shooting the corpse/mannequin is guilty of an "attempt to murder" de dicto, but is innocent of the crime de re.

Apparently I'm not the first to come up with this explanation. "Trying to Kill the Dead: De Dicto and De Re Intention in Attempted Crimes" By Gideon Yaffe seems to have beaten me to it. I haven't yet gotten a chance to read it, though.

(Oct 28 '12 at 18:10) anthony anthony's gravatar image

By the way, I don't agree with Yaffe about the specifics. I just happened to come up with that paper when I googled "de dicto de re attempted murder", or something like that. I mention it because it might be interesting, but I by no means am endorsing it.

(Oct 28 '12 at 18:17) anthony anthony's gravatar image
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Asked: Oct 25 '12 at 08:34

Seen: 1,870 times

Last updated: Oct 28 '12 at 18:59