This question goes to the heart of one of the more difficult doctrines in attempt law: impossibility. When the only thing standing between an accused’s conduct and a lawful act is the absence of authorization, the answer depends on how the law characterizes that missing authorization. Where the lack of authorization is the very element that makes the conduct criminal, an attempt can be sustained. Where the accused merely imagined that authorization was required when it was not, the result may be different. The analysis turns on the distinction between legal and factual impossibility under Article 80 of the UCMJ.
The Attempt Framework Under Article 80
Article 80, 10 U.S.C. § 880, defines an attempt as an act, done with specific intent to commit an offense, amounting to more than mere preparation and tending, even though failing, to effect the commission of that offense. An attempt requires four things: an overt act, the specific intent to commit the offense, conduct beyond mere preparation, and an act that apparently tends toward completing the intended crime.
The mental state is central. Attempt is a specific intent crime. The accused must intend to commit an act that the law actually defines as an offense. This requirement is what makes the impossibility analysis necessary when authorization is the missing piece.
When Lack of Authorization Is the Criminal Element
Many military offenses are defined precisely by the absence of authorization. Conduct that would be perfectly lawful with permission becomes criminal when done without it. The classic examples include taking or using property, accessing systems, possessing items, or being absent from duty without proper authority. In these offenses, the want of authorization is not an incidental fact; it is an element the government must prove.
When that is the case, an attempt can be sustained even though the act would have been legal had authorization existed. The reason is that the accused intended to do the very thing the law forbids, namely the act without authorization. Suppose a service member sets out to take government property believing they have no authority to do so and intending to take it anyway, and is interrupted before completing the taking. The act would have been lawful if the member had been authorized, but the member intended an unauthorized taking. That is an intent to commit a genuine offense, and the overt act in furtherance of it can support an attempt charge. The fact that authorization could theoretically have made the completed act lawful does not excuse an effort the accused understood to be unauthorized.
Factual Impossibility Is Not a Defense
Closely related is the principle that factual impossibility does not defeat an attempt. If the circumstances were as the accused believed them to be, and those believed circumstances would make the conduct an offense, the accused is guilty of an attempt even if some fact unknown to the accused made completion impossible.
Applied to authorization, this means that if an accused believes they lack authorization and intends to act anyway, the attempt stands even if it later turns out that, by some quirk, authorization actually existed or the object was beyond reach. The accused’s culpability rests on the intent to commit an unauthorized act. The military recognizes that a person who purposely engages in conduct that would constitute an offense if the circumstances were as the person believed them to be is guilty of an attempt. The defense of factual impossibility is therefore unavailing.
Legal Impossibility and Its Narrow Role
The harder case is true legal impossibility. Legal impossibility exists when what the accused set out to do is not, in fact, a crime at all. If an accused mistakenly believes that authorization is legally required for some act, and acts without it, but the law actually imposes no such requirement, then completing the act would not be an offense. A person cannot attempt to commit an offense that does not exist. In that narrow situation, there is no crime to attempt, and an attempt charge cannot be sustained.
The line, then, is between two very different scenarios. In the first, the law genuinely makes the unauthorized act criminal, and the accused intends to do that unauthorized act; an attempt lies. In the second, the law does not make the act criminal at all, and the accused only imagines that it does; there is nothing to attempt. The phrase “would have been legal but for lack of authorization” must be read carefully. If the lack of authorization is what the statute criminalizes, the conduct is not actually legal in the eyes of the law; it is the offense.
Why the Distinction Matters in Practice
The practical significance is that the government’s theory must identify a real offense that the accused intended to commit. Where the charged offense includes lack of authorization as an element, proving that the accused intended to act without authorization, took an overt act beyond preparation, and apparently tended toward completion will sustain the attempt, regardless of whether authorization could hypothetically have been granted.
Defense counsel, in turn, will examine whether the accused actually intended an unauthorized act or instead believed authorization existed, and whether the underlying offense truly criminalizes the unauthorized conduct. If the accused honestly and reasonably believed they were authorized, that bears on the specific intent the attempt requires, because a person who believes their conduct is authorized may lack the intent to commit the offense. And if the supposed offense is not an offense at all, legal impossibility forecloses the charge.
Conclusion
Attempt charges can be sustained when the act would have been legal but for lack of authorization, provided the lack of authorization is the element that makes the conduct criminal and the accused intended to act without it. In that situation the accused intends a real offense, factual impossibility offers no defense, and an overt act beyond preparation completes the attempt. The exception is true legal impossibility, where the law imposes no authorization requirement and the accused merely imagined one; there, no offense exists to attempt. The decisive question is whether the missing authorization is what the law forbids the accused from omitting, or simply a condition the accused wrongly thought necessary.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
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