Texas law, like the law of most states, sets the punishment for an attempted offense at a lower penalty level than the completed offense. Robbery, however, includes within its definition the elements of the attempt to commit the offense

Question

Should the penalty for other mala in se offenses, such as murder and sexual assault, be set at the same penalty level as the consummated offense? Why or why not?

Answer 1

Answers will vary but students might note some of the following in favor or against the proposition:

Favoring alteration of the rule:
• The current rule effectively rewards a person for being a bad shot or not anticipating rapid medical treatment for the victim of his attempt at committing murder. The malice in the offender's heart is the same whether or not he successfully causes the death of his intended victim.
• The victim of an attempted sexual assault or attempted kidnapping is likely to suffer much of the same psychological damage as the victim of a consummated sexual assault or kidnapping. Depending on the facts of the case, to a large extent the harm done to the victim of the attempt is the same as the harm caused the victim of the completed offense.

Opposing alteration of the rule:
• Elements of the current law of burglary already cover much conduct that might otherwise be viewed as an attempted crime. So a change in the law likely would impact only those cases where an entry fails to be accomplished. A burglary is frequently complete when any form of breaking or entering is accomplished, no matter how slight. A would-be burglar reaching through a window completes the elements of the offense even if no further action occurs.
• Modern criminal law has generally punished individuals for the harm they commit, not the harm they intend. Equating a person's evil intentions with the resultant harm would be a break with this 200-year-old legal tradition.