Legal Definitions - probable-desistance test

The probable-desistance test is a legal standard used in criminal law to determine if a person's actions have progressed far enough to be considered an attempt to commit a crime, even if the crime itself was not completed. This test focuses on whether the individual's behavior has reached a point where it strongly indicates they were likely to complete the intended crime, rather than abandoning their plan voluntarily. In essence, it asks: did the person's actions demonstrate a clear and present danger that the crime would have been committed if not for some external interruption?

Here are some examples illustrating the probable-desistance test:

• Example 1: Attempted Burglary

  A person, after weeks of planning, acquires specialized tools for breaking into a high-security safe. They drive to the target business late at night, park in a secluded spot, and begin to approach a side entrance while wearing dark clothing, gloves, and a ski mask. Before they can touch the building, a passing police patrol spots their suspicious behavior and intervenes.

  How it illustrates the term: The individual's actions—acquiring specific tools, driving to the location at an unusual hour, wearing a disguise, and actively approaching the building—demonstrate a clear intent and a high probability that they would have proceeded with the burglary if not for the police intervention. Their behavior suggests they were unlikely to simply "desist" or give up at that point; they were actively moving towards completing the crime.

• Example 2: Attempted Assault

  An individual has a long-standing dispute with a neighbor. They purchase a specific type of firearm, practice shooting at a remote range, and then wait hidden in the bushes outside the neighbor's home. When the neighbor steps outside, the individual raises the weapon, aims directly at the neighbor, and begins to squeeze the trigger, but is tackled by a quick-thinking bystander before the shot can be fired.

  How it illustrates the term: The series of actions—acquiring a weapon, practicing with it, lying in wait, aiming, and initiating the firing sequence—strongly indicates a high probability that the individual intended to complete the assault. Their actions had progressed far beyond mere thought or preparation, suggesting they were not likely to voluntarily stop before firing the weapon.

• Example 3: Attempted Arson

  A disgruntled former employee buys several gallons of gasoline and a box of matches. They drive to their former workplace in the middle of the night, pour gasoline around the building's foundation, and then strike a match. However, a sudden gust of wind blows out the flame, and before they can strike another, security personnel apprehend them.

  How it illustrates the term: The actions of purchasing flammable materials, transporting them to the site, distributing the gasoline around the building, and striking a match demonstrate a clear and strong likelihood that the individual intended to commit arson. The only thing preventing the crime's completion was an external factor (the wind and subsequent apprehension), not a voluntary decision to desist from their criminal plan.