“Two enlisted military men, Thomas and McClellan, were spending an evening drinking in bars. In one bar McClellan began dancing with a young woman who was drunk and soon collapsed in his arms on the dance floor. The defendants put the woman in McClellan’s car, having agreed at the bar to take her home. Once in the car McClellan suggested they use the opportunity to rape her as she was unconscious and would not know the difference. Each defendant then proceeded to have sexual intercourse with the woman. Later, after being unable to find the location of her home, they became concerned about her condition as she had not regained consciousness, so they sought help at a service station. The service station attendant called the police, who determined she was dead. An autopsy conducted later ascertained that she died of a heart condition, “acute interstitial myocarditis”. The general undisputed opinion was that her death most likely occurred at the time of her collapse. The two defendants were not aware of her death.
The defendants used the “impossibility” defense, claiming that it was legally impossible to attempt to rape a woman who was dead.
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