Factual Impossibility

Factual Impossibility is a partial defense to a crime based on physical impossibility to perform the prohibited conduct or cause the prohibited results that would constitute the contemplated offense. Factual Impossibility is not a complete defense. It allows for prosecution for an attempt crime. For example, if a defendant placed a car bomb in his neighbor's car and it failed to explode, Factual Impossibility would be a defense to murder charges but not attempted murder. Examples of Factual Impossibility include:

• A pickpocket finds that the prospective robbery victim's pocket is empty.
• A person shoots his gun at an innocent victim and his gun is not loaded.
• An impotent person attempts to rape.
• A person attempts to steal his neighbor's car but when he arrives to steal the car, the car won't start and cannot be driven off.