actuality, the female was dead at the time the intercourse was committed. On appeal, the accused's
conviction for attempted rape was affirmed on the principle that although a dead person cannot be raped,
the accused intended to commit an act which amounted to rape, and the accused also performed an overt
act toward the crime's commission. Finally, the court concluded that this was an attempted rape because
had the facts been as the accused believed them to be (that the female was alive) he could have been
convicted of rape.
Another example of the issue of factual impossibility arises when the accused sees an unconscious
acquaintance with a hypodermic needle and syringe lying at his side and proceeds to destroy the needle
and syringe in an effort to prevent the acquaintance from being prosecuted for use and possession of
narcotics, not knowing that the acquaintance is, in fact, dead. In such a case, although the accused
cannot be found guilty of accessory after the fact in violation of Article 78, UCMJ, he may be found
guilty of attempted accessory after the fact because the accused believed that the individual was alive at
the time the needle and syringe were destroyed. United States v. Wilson, 7 MJ 997 (ACMR 1979).
The policy behind convicting an accused in situations of factual impossibility is the accused has
demonstrated that he is a dangerous person whose intent is just as criminal as it would have been had the
facts been as he believed them to be.
2. Specific Intent. Attempts are specific intent crimes. The accused is only liable for an
attempt if he specifically intended to commit the crime.
D. Conspiracy (Article 81, UCMJ). A conspiracy occurs when there is an agreement between
two or more persons to commit an offense under the UCMJ and while the agreement remained in effect
and the accused was a party to the agreement one or more of the coconspirators performs an overt act in
furtherance of the agreement.
There are two primary social purposes served through enforcement of the crime of
conspiracy. First, since a conspiracy can be proven even where no substantive crime has been
committed, criminal conduct can be stopped before the criminal harm occurs. Secondly, group activity
of a criminal nature is more dangerous to society than the criminal conduct of one individual who is
1. The Agreement. The agreement in a conspiracy does not have to be in any particular
form and it does not have to be manifested by any formal words. It is sufficient if the minds of the
parties arrive at a common understanding to commit a crime. The agreement does not have to
specifically state the way the conspiracy will be accomplished or what part each conspirator is to play.
Part IV, MCM, 1984, para 5c(2).
QUESTION: IF AN UNDERCOVER DRUG SUPPRESSION TEAM (DST) MEMBER SETS UP A
DRUG "BUY" WITH A SUSPECTED DEALER, HAS THE DST MEMBER JUST BECOME A