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Carl wants to commit a crime. He gets input from Scarlet. Little does Carl know that Scarlet is a Scammer, and leads Carl into a scam. Under normal circumstances, Carl might press charges against Scarlet for e.g. fraud. But Carl was literally trying to commit a crime in the first place. Is there any way for Carl to get any justice against Scarlet without incriminating himself and facing legal action? Or is Carl safe because "intent" to commit illegal actions isn't heavily punished in these cases?

A few examples I have in mind are:

  1. Scarlet gives Carl a program to view illegal content (e.g. kiddie porn). When Carl runs the program, it hacks his computer and steals all his passwords, info, etc.
  2. Scarlet gives Carl and many others an "insider trading" tip, that Carl acts upon. Carl loses money, because Scarlet gave the fake tip for nefarious purposes.
  3. Scarlet says she'll murder someone for Carl for $1mil up front. Scarlet takes the money and then runs away.

Basically: can one commit crimes against criminals because criminals have more to lose from admitting to the crime than they have to gain by pursuing justice against you?

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  • 3
    As to your last question: criminals are criminal. In your third point, Carl is willing to hire a murderer. So Scarlett would risk becoming the next target. The risk goes either way.
    – o.m.
    May 13 at 4:19
  • 2
    One of the most common contexts where this comes up is in prostitution. If someone agrees to pay $X for sex to a prostitute, and then doesn't pay, the prostitute has no legal recourse since it is an illegal contract, and would risk being incriminated if the John were reported. Historically, the most common means of retaliation when this happens is a letter informing a romantic partner, spouse, employer, etc. of the John about his activities. The other most common means was organized crime enforcement orchestrated by the pimp.
    – ohwilleke
    May 14 at 0:03
  • 2
    @ohwilleke: At the risk of stating the obvious, that's one of the two main reasons usually stated in support of de-criminalizing prostitution, the other being access to employee protection and workplace health and safety laws. (Cynically, one might argue that the real reason is to levy income and business tax, but unfortunately, governments are quite happy to do that even without giving access to any of the services in return.) May 14 at 9:51
  • 2
    @JörgWMittag When Australia legalized prostitution, not only did it add all the things you mentioned, but the legal brothels helped to crack down on the illegal ones because of the unfair competition.
    – Peter M
    May 14 at 13:54
  • 3
    This is a tried-and-true trope from all sorts of media. When somebody steals from or defrauds a mob boss/drug kingpin/underworld overlord, it's not the police that they need to worry about - justice will still be pursued, just not through legal means. May 14 at 14:50

5 Answers 5

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Carl might be interested in bringing a civil lawsuit against Scarlett arising out of the scam, but in doing so, would probably waive any right he had (if any) to keep his own involvement secret and by doing so would raise a red flag for prosecutors to prosecute him, that might never have been revealed if the lawsuit was never commenced.

Scarlett could raise a defense of illegality to a breach of contract or promissory estoppel claim. This is certainly on point for case #3, and is also a pretty strong argument for case #1.

Scarlett could raise an unclean hands defense to any equitable claim and also, in some jurisdictions, to any claim at all. There is a split of authority among jurisdictions over whether equitable defenses can be raised in response to claims that do not arise in equity.

In case #1 there are certain, fairly narrow circumstances where digital counteroffensive action is authorized, but I don't know that area of law very well.

Case #2 is probably the hardest, because there she has defrauded Carl, and fraud doesn't ordinarily require an intent to gain from the fraud, and Carl arguably wasn't actively seeking out insider information and wouldn't have done anything at all if Scarlett hadn't initiated the transaction by baiting him. Also, exposing victims to a fear of criminal prosecution if they report the fraud feels more like an aggravating component of a fraudulent scheme in a way that #1 and #3 do not.

As a result, there is a very good chance (especially in cases #1 and #3) that if he brought a civil suit against Scarlett, that Carl would loose that lawsuit and simultaneously generate evidence that could be used against him in a criminal case.

On the other hand, Scarlett faces the similar risks by raising the defenses. Still, in all of the three examples, Scarlett never has any intent to commit any of the crimes that Carl is proposing. The risk of civil liability for fraud in #2 is there, and potentially even criminal liability, but in #1 and #3 her risk from entering into an illegal contract and then not performing is smaller than in #2.

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Every offence, by either party, can be independently prosecuted.

Whether a person who has themselves committed an offence will avoid reporting or co-operating is not a legal question.

Intent to commit an offence is not enough to be convicted, even for an attempt. The intent needs to be paired with some act. For attempts, the exact threshold will depend on the jurisdiction. As just one example, in Canada, an attempt requires the taking of some action that is more than merely preparatory. This threshold is explained at another Q&A: For a criminal attempt, when is an act more than merely preparatory?

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  • 11
    what the OP has described appears to have risen to the level of conspiracy - that is a crime.
    – Dale M
    May 13 at 2:48
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If Scarlet's crime is more serious than Carl's, he might be able to negotiate immunity for his own crime in return for providing evidence and testimony needed to convict Scarlet.

But he's taking a risk that the DA doesn't consider Scarlet's crime serious enough to agree to immunize Carl.

3

In general, Carl just needs to absorb the loss - although as as criminal he will probably take his own retaliatory action. But in n your specific cases...

  1. Carl has the simple option of lying about what the alleged content was going to be. If he picks a plausible story (perhaps he says Scarlet claimed it was a rejected draft version of the next CoD), then as long as he doesn't actually have any kiddie porn and he sticks to the story, he can easily send the cops after her.

  2. Insider trading is illegal - but if you don't make a profit and it's not actual company information then it's not insider trading. There's no crime of attempted insider trading. (Although check your local justice system for this one.). In this case, Carl absolutely could go to the police and get Scarlet nailed.

  3. This is the one that fits your more general case. There is a crime of conspiracy to murder, and Carl's done it. The problem for Scarlet though is that if Carl's got that much spare money and knows where to find hitmen, there's nothing stopping him doing it again. Call it a "private prosecution", if you will.

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  • Would this even classify as insider trading for Carl? He doesn't work for the company, and has no obligation to keep its secrets unlike Scarlet. Simply put, he is not an insider himself. If I overhear some executives discussing company matters in a restaurant, I don't think I'm prohibited from investing based on that information.
    – Davor
    May 14 at 8:27
  • @Davor This varies a lot based on jurisdiction. As I understand it, Insider Trading in the US requires theft and/or a breach of trust (so as you say, merely overhearing something in a public place does not make it illegal to trade). Whereas in Europe it's often illegal to use insider info regardless of how you came to know about it.
    – Kaz
    May 14 at 9:06
  • @Davor As Kaz says, this depends. Even in the US though, the definition of insider trading is merely that you have access to non-public information. If you overheard executives discussing it in public, you'd probably have reasonable grounds to defend yourself on the grounds that they'd basically made it public. If someone tells you in private that they have this non-public information, you don't really have a leg to stand on. Except if it wasn't genuine non-public information, of course.
    – Graham
    May 14 at 12:45
  • @Davor ... Of course, you could potentially be on the hook for conspiracy to commit fraud, even if it wasn't genuine information. But most jurisdictions don't generally go after the victims of scams, because that protects scammers (the actual criminals) behind a wall of silence which is clearly counter-productive. In some places the courts might not care too much. But if financial services is a significant part of your country's GDP, your government will probably care about stopping anything which would erode trust in your country's financial services.
    – Graham
    May 14 at 12:50
0

For most crimes, the attempt to commit them is already a crime. However, for some crimes only the completed act is. Which fall into which category is a question of jurisdiction.

Note that "attempt" generally means having taken some steps towards acting. Merely thinking of a crime is not a crime itself, at least in the USA.

For example, perjury is a crime, but only if you actually make the false statement, simply preparing to do so is not, even if you already prepared your false statement in writing. Trespassing is not a crime until you actually do it, preparing for trespassing is not a crime. Neither is stalking, where an actual threat for the victim must exist for it to be a crime.

So in a more philosophical sense there are some crimes where Carl has not yet committed the actual criminal act and could rat out Scarlet without risking a conviction for himself.

While we are philosophical, there is also another kind of crime where being scammed can change the picture: Crimes that are not criminal if conducted with the agreement of the other party. The famous example from law lectures are boxing matches, which would be criminal (assault and battery) if the opponents had not agreed to have a boxing match. In some cases Carl might claim the defense of mistake of fact to his own actions if Scarlet has mislead him as part of her scam.

All of the above are largely hypothetical. In your three examples, to the best of my knowledge (IANAL etc.) all three are crimes where the attempt is punishable.

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