PART IV. 
GENERAL PROVISIONS RELATING TO



INCHOATE
OFFENSES



 



§705-530  Renunciation of attempt,
solicitation, or conspiracy; affirmative defense.  (1)  In a prosecution
for criminal attempt, it is an affirmative defense that the defendant, under
circumstances manifesting a voluntary and complete renunciation of the
defendant's criminal intent, gave timely warning to law-enforcement authorities
or otherwise made a reasonable effort to prevent the conduct or result which is
the object of the attempt.



(2)  In a prosecution for criminal
solicitation, it is an affirmative defense that the defendant, under
circumstances manifesting a complete and voluntary renunciation of the
defendant's criminal intent:



(a) First notified the person solicited of the
defendant's renunciation,



(b) Gave timely warning to law-enforcement
authorities or otherwise made a reasonable effort to prevent the conduct or
result solicited.



(3)  In a prosecution for criminal conspiracy,
it is an affirmative defense that the defendant, under circumstances
manifesting a voluntary and complete renunciation of the defendant's criminal
intent, gave timely warning to law-enforcement authorities or otherwise made a
reasonable effort to prevent the conduct or result which is the object of the
conspiracy.



(4)  A renunciation is not "voluntary and
complete" within the meaning of this section if it is motivated in whole
or in part by:



(a) A belief that circumstances exist which increase
the probability of detection or apprehension of the accused or another
participant in the criminal enterprise, or which render more difficult the
accomplishment of the criminal purpose; or



(b) A decision to postpone the criminal conduct until
another time or to transfer the criminal effort to another victim or another but
similar objective.



(5)  A warning to law-enforcement authorities
is not "timely" within the meaning of this section unless the
authorities, reasonably acting upon the warning, would have the opportunity to
prevent the conduct or result.  An effort is not "reasonable" within
the meaning of this section unless the defendant, under reasonably foreseeable
circumstances, would have prevented the conduct or result. [L 1972, c 9, pt of
§1; gen ch 1993]



 



COMMENTARY ON §705-530



 



  Modern penal theory recognizes two basic reasons for allowing
renunciation as an affirmative defense to inchoate crimes.  First, renunciation
indicates a lack of firmness of that purpose which evidences criminal
dangerousness.  The same rationale underlies the reluctance to make merely "preparatory"
activity a basis for liability in criminal attempt:  the criminal law does not
seek to condemn where there is an insufficient showing that the defendant has a
firm purpose to bring about the conduct or result which the penal law seeks to
prevent.  Where the defendant has performed acts which indicate, prima facie,
sufficient firmness of purpose, the defendant should be allowed to rebut the
inference to be drawn from such acts by showing that the defendant has plainly
demonstrated the defendant's lack of firm purpose by completely renouncing the
defendant's purpose to bring about the conduct or result which the law seeks to
prevent.[1]



  Second, it is thought that the law should provide a means for
encouraging persons to abandon courses of criminal activity which they have
already undertaken.  In the very cases where the first reason becomes weakest,
this second reason shows its greatest strength.  That is, in the penultimate
stage, where purpose is most likely to be firmly set, any inducement to desist
achieves its greatest value.[2]



  Renunciation in all three inchoate situations requires that
the defendant either give timely warning to the police, or make a reasonable
effort to prevent the culmination of the crime.  If the warning to the police
is timely, as defined in subsection (5), this alone is sufficient to establish
the defense, and no further effort, reasonable or otherwise, is required of the
defendant.  It is assumed that the police make reasonable efforts in this
regard; and when they do not do so, it makes little sense to punish one who so
relies upon them.  Where the police have not been warned, efforts at prevention
must be reasonable, in the sense of substantial, as well as timely.  As
reasonable is defined, it must be sufficient under all foreseeable
circumstances to prevent the offense.  Only where the prevention is thwarted by
circumstances which are not reasonably foreseeable does the Code allow the
defense of renunciation.  Thus unless such unforeseeable circumstances occur, the
substantive offense will always be prevented.



  When the defendant has been able to prevent the occurrence of
the substantive evil, the defendant has counterbalanced the danger to society
which the defendant's actions presented.  In terms of the foregoing rationales
of renunciation, the defendant has evidenced a sufficient lack of firmness in
the defendant's criminal purpose that liability ought not to apply, and the law
has perhaps succeeded in encouraging the defendant to abandon the defendant's
criminal activities.



  It would not be reasonable to hold the defendant strictly
liable for the defendant's inchoate activities by imposing liability where
unforeseeable circumstances thwart prevention of the substantive offense.  If
the defendant's renunciation is effective but for circumstances not reasonably
foreseeable, that is all that may be asked.  Moreover, to impose strict
criminal liability in such situations would be to ignore the rationales for
allowing the defense of renunciation.  If the defendant's renunciation is
effective under all foreseeable circumstances, the defendant has evidenced a
sufficient lack of firmness in the defendant's criminal purpose, and the law
has succeeded as far as is rationally possible in encouraging the defendant to
abandon such purpose.



  In the solicitation situation, it is recognized that there is
a further important need to ensure that the person solicited is aware of the
renunciation.  The requirement of reasonable effort as it is used in the Code,
probably would require such notification in almost all cases, but the obvious
and necessary nature of such notification has led to the insertion of this
special requirement in other codes.[3]  Moreover, a person who seeks to
withdraw and notifies the police without also notifying the person solicited,
acts in a sense as the "entrapper" of the solicited person.



  The requirement and definition of voluntary and complete
renunciation are principally to ensure the good faith of the defendant in
abandoning the defendant's criminal purpose.  As defined, the renunciation must
be such that it indicates that the defendant no longer represents a substantial
danger to society.



  Hawaii has previously not developed statutory or common-law
doctrine of renunciation in the inchoate area.  This section of the Code
represents a valuable addition to Hawaii law in this area.



 



__________



§705-530 Commentary:



 



1.  M.P.C., Tentative Draft No. 10, comments at 72 (1960).



 



2.  Id.



 



3.  Prop. Mich. Rev. Cr. Code §1010(2); see also M.P.C.
§5.02(3), where notification is an alternative method of prevention.