Voluntary Abandonment

courtmartialdefenselawyers10.58.08 2Voluntary abandonment is a special defense to a charge of attempted commission of a crime. M.C.M., pt. IV, 4c(4); United States v. Byrd, 24 M.J. 286 (C.M.A. 1987).   It is not available as a defense to an attempt crime where the acts committed have caused substantial harm to the victim. See United States v. Smauley, 42 M.J. 449 (C.A.A.F. 1995) and United States v. Thornsbury, 59 M.J. 767 (A. Ct. Crim. App. 2004).   It is available for a consummated attempt only when the accused has a genuine change of heart that causes her to renounce the criminal enterprise. See United States v. Schoof, 37 M.J. 96 (C.M.A. 1993) and United States v. Walther, 30 M.J. 829 (N.M.C.M.R. 1990).

Voluntary abandonment not raised when the defendant abandoned his efforts because of a fear of being detected or apprehended. United States v. Miller, 30

M.J. 999 (N.M.C.M.R. 1990).   In United States v. Rios, 33 M.J. 436 (C.M.A. 1991), the Court found that the defense is also not raised when the defendant merely postpones his criminal enterprise until a more advantageous time or transfers his criminal effort to another objective or victim, or where his criminal purpose is frustrated by external forces beyond his control.