Factual Impossibility Law and Legal Definition

Factual impossibility refers to impossibility due to the fact that the illegal act cannot physically be accomplished. However, factual impossibility is not a defense to the crime of attempt. Factual impossibility exists when a person's intended end constitutes a crime, but she fails to consummate the offense because of an attendant circumstance unknown to her or beyond her control. Examples of factual impossibility are:

1.a pickpocket putting her hand in the victim's empty pocket;

2.an abortionist beginning the surgical procedure on a nonpregnant woman;

3. an impotent male trying to have nonconsensual sexual intercourse;

4.an assailant shooting into an empty bed where the intended victim customarily sleeps, or pulling the trigger of an unloaded gun aimed at a person who is present.

Factual impossibility occurs when the actions intended by a defendant are proscribed by the criminal law, but a circumstance or fact unknown to the defendant prevents him/her from bringing about the intended result. Traditional analysis recognizes legal impossibility as a valid defense but refuses to recognize factual impossibility.[Parham v. Commonwealth, 2 Va. App. 633 (Va. Ct. App. 1986)].