Attempt Crimes

Under Wisconsin laws, if a person intends to commit the acts or cause the results constituting the crime, and progresses sufficiently towards completing the crime, he has committed the crime. For that reason, Wisconsin statutes do not include attempt crimes, such as Attempted Murder or Attempted Rape.

Act of Perpetration

An act of perpetration occurs when the defendant performs any act beyond mere preparation that furthers the attempt to commit the crime. Often times, the defendant is said to have "entered the zone of perpetration" when found guilty of an attempt crime. To determine if an act of perpetration has been committed, most jurisdictions employ a test called "a proximity test". A proximity test compares the defendant's actions to the target crime to determine how close in physical distance and time the defendant was to the place of the target crime at the time that the target crime was to be committed.

Some jurisdictions look to the defendant's last proximate act to determine if that act was sufficient, to his physical proximity to the intended crime scene, to the amount of control that he has over indispensable factors, and to the probable distance he is from completing the crime without interference,

Specific Intent

Attempt is a specific intent crime; in order to sustain a charge of attempt to commit a crime, the defendant must have intended to commit that crime for which he is charged, and the evidence must indicate that he intended to act or attain a result that would, if completed, achieve the targeted crime.

Criminal Charges

In some jurisdictions, an attempt to commit a crime is charged as an attempt; however, in most jurisdictions, Wisconsin included, an attempt to commit a crime is charged as the completed crime. Even so, a defendant cannot be charged with both an attempt to commit a crime and the completed crime because the crime of attempt merges with the completed crime (one must attempt to complete a crime in order to complete that crime).

To sustain a charge of attempt, whether the jurisdiction charges attempt as an attempt to commit a crime or as the completed crime, it must be proven that the defendant had the requisite intent to perform the act or cause the result of the crime.

Withdrawal & Abandonment

If the defendant changes his mind and abandons his attempt to commit a crime, he can still be held liable for an attempt to commit a crime, unless that abandonment constituted a failure to perpetrate. Preparation to commit a crime does not constitute a perpetration to commit that crime, although it may constitute another crime.

Impossibility

If the defendant attempted to complete a crime, but unbeknownst to him, facts existed that prevented him from completing his objective, under traditional common law, he was still guilty of having attempted to complete a crime, and could be convicted of the crime attempted in a jurisdiction that charges a defendant for the attempted crime as a completed crime, otherwise in a jurisdiction that charges an attempt as an attempt, then he could have been charged and convicted with attempt.

If however the crime that was attempted was not a crime, even though the defendant believed it was a crime, under traditional common law, legal impossibility was a defense.

Today, most jurisdictions resolve disputed impossibility as though it is a technicality, which means that if the intended act is illegal, but the actual attempted or completed crime is not illegal, the defendant is still charged with attempt because it was his objective to commit a crime.

Does HIV Constitute Attempted Murder?

In Smallwood -v- State (680 A2d 512), the court held that a defendant who was positive for the HIV virus who raped or sexually assaulted another person without words or conveyances of the knowledge that he was HIV positive was not guilty of attempted murder.

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