Attempting to Cause Injury

Attempting to Cause Injury

Paragraph (a) of Model Penal Code § 211.1(1) defines one offense that can be committed in two ways: a person is guilty if he "attempts to cause or purposely, knowingly or recklessly causes bodily injury to another."¹ The three mental states examined in the preceding sections belong to the second way, which requires that injury actually occur. The first way, taught here, reaches a defendant who tries to injure someone and fails. It corresponds to the older assault that consisted of an attempt to commit a battery, a form that requires a specific intent to cause physical injury.² The reason for punishing the failed effort is that whether a blow lands depends on matters the defendant does not control, such as the target's reflexes or the defendant's aim, and those matters do not change how blameworthy the effort was. A rule that waited for injury would make identical wrongdoing criminal or innocent according to luck, and it would keep the law idle until someone was hurt.

The mental state for the attempt route comes from reading the paragraph's grammar with care. The adverbs "purposely, knowingly or recklessly" stand directly before the verb "causes," while "attempts to cause" carries no adverb of its own, so the paragraph reads as two alternatives: the defendant attempts to cause injury, or the defendant causes injury with one of three mental states.³ The Code's default rule points the same way. Section 2.02(4) carries a stated culpability term across every material element only when the offense is defined without distinguishing among them, and paragraph (a) places its three states in the clause that describes completed causing.⁴ What governs the attempt clause, then, is the general requirement for attempts, which is intent to commit the target crime, here the infliction of bodily injury.⁵ In State v. Smith, a New Jersey appellate court reviewing an attempted murder conviction under an attempt statute drawn from the Code repeated that the defendant must have purposely intended the particular result the underlying offense makes an element.⁶

The reason the attempt route is limited to purpose follows from what each route has to carry. In the completed form an injury exists, and the harm itself supplies much of the seriousness that justifies punishing a defendant who only consciously ran a risk. An attempt has no harm to lean on, so the defendant's state of mind must do all the work, and only a defendant who is aiming at injury has directed conduct at the forbidden result. A defendant who recognizes a risk but aims at nothing in particular has not tried to hurt anyone. That defendant is not left outside the criminal law, because § 211.2 makes it a misdemeanor to recklessly engage in conduct that places or may place another person in danger of death or serious bodily injury.⁷ That offense is taught at the end of this chapter, and it is a different crime from assault under paragraph (a).

The two scenes differ in a single variable, the defendant's aim, and that variable decides the outcome. Students lose this issue when they treat a risky act that injured no one as an attempt, because an attempt needs an aim and a risk is only a danger the defendant has noticed. On an exam stem, the facts worth looking for are the ones that reveal the defendant's object: what the defendant said before the act, whom the defendant was facing, and whether the conduct was pointed at a particular person or thrown into a space.

Because the object of the attempt is injury, the attempt route does not depend on what the intended victim saw, heard, or felt. The text of the clause contains no requirement of fear or apprehension, and the defendant's effort is just as culpable when the target never notices it. That feature separates paragraph (a) from paragraph (c), which reaches a defendant who "attempts by physical menace to put another in fear of imminent serious bodily injury."⁸ In paragraph (c) the thing the defendant is trying to produce is the victim's fear, so the victim's mind sits at the center of the offense. In paragraph (a) the thing the defendant is trying to produce is the injury, so the victim's mind is beside the point.

The general law of attempt supplies the remaining questions about how far a defendant must go. Under the Code the threshold is a substantial step toward the criminal goal, which sits much earlier than the last act before the harm.⁹ That body of law is taught elsewhere, and a defendant who swings, shoots, or lunges at a target plainly passes it. The same orientation toward the defendant's mind appears in the treatment of impossibility. Smith held that, under a statute taking the Code's approach to a defendant who has done all the defendant believes necessary to cause the result, the objective probability that the act would succeed was irrelevant, because the statute punishes the mental intent to commit a crime when the conduct was sufficient, as far as the defendant knew, to bring it about.¹⁰ For paragraph (a), the lesson is that the attempt clause looks to the defendant's aim and belief, and the full law of impossibility belongs to the study of attempt.