It was the apprehension of being struck that induced compliance" (Perkins 1954: 346).
As well as a feasible threat, to prove there was an attempt to commit a crime requires defining the attempt as distinct from mere preparation. It is also noteworthy that "a distinction is made between measures taken by way of preparation for the commission of a crime and steps taken in the direction of its actual perpetration" (Perkins 1954: 325). But the actual preparation for the crime is not synonymous with the attempt. "So far as the common law is concerned there is no criminal attempt unless what was done went beyond the stage of preparation" and the "act must reach far enough toward the accomplishment of the desired result to amount to the commencement of the consummation" (Perkins 1954: 325). Of course, this can be difficult to define: for example, in the case of an attempted murder, making inquiries about the whereabouts of the intended victim might merely be classified as preparation while actually drawing the gun would be classified as an attempt. "The problem is to determine at what point his acts went beyond preparation and were in the nature of perpetration. The actual firing of the shot was not essential to the attempt" (Perkins 1954: 326).
The concept of attempt as distinct from preparation is designed to address the need to punish a meaningful attempt at a crime while not punishing mere fantasizing about the crime. However, the argument remains that drawing such a fine line between these two is reliant upon a determination of a state of mind to such of degree that the line drawn is meaningless. But it should be noted that the notion of...
For example, the crime of stockpiling weapons may be penalized as a separate crime even though it is sometimes a component of preparing to commit the attempted crime of murder. Admittedly, this is penalizing the defendant for a different, actual crime vs. The one he decided to commit but this is one possible solution to the problem of determining the mental state of the defendant -- to focus on actions rather than upon intentions. Finally, there is the question of withdrawal: when the preparation is aborted, where to draw the line between an aborted preparation and a legally culpable attempt? "A voluntary withdrawal may be regarded as a ground for according immunity to the actor or as a ground for reducing his punishment or as not affecting his responsibility in any way" (Kichyun 1957: 1197).
Solutions to the problem of distinguishing between preparation and attempt have proven elusive and perhaps the best 'solution' of all is merely focusing on the completed crimes that have been committed (such as illegal use of a weapon, acting recklessly, invasion of privacy) that are likely to be deployed over the course of either an attempt or preparation to commit a crime. Regardless, the definition of both legal terms is likely to remain subjective and context-dependent, as well as reliant upon the challenge of defining the mental state of the defendant.
References
Kichyun, P. (1957). Contemporary problems of criminal attempts. NYU Law…
