§702-209 Conditional intent. When a particular intent is necessary to establish an element of an offense, it is immaterial that such intent was conditional unless the condition negatives the harm or evil sought to be prevented by the law prohibiting the offense. [L 1972, c 9, pt of §1] COMMENTARY ON §702-209 This section provides that when the law requires that a particular intent is necessary to establish an element of an offense, that intent is established notwithstanding its conditional nature, unless the condition negatives the harm or evil sought to be prevented. The section provides for a common sense result, and the cases in which the condition negatives the harm or evil sought to be prevented will not be many; nevertheless the distinction should be stated. The section can best be illustrated by example. A person accused of burglary would not be excused because the person intended to steal only if no one else was in the building, whereas a person charged with attempted rape, predicated on a preliminary assault, would be excused of that offense if the person intended to effect sexual intercourse only if the mature victim consented. as a person charged with attempted rape, predicated on a preliminary assault, would be excused of that offense if the person intended to effect sexual intercourse only if the mature victim consented. In the latter case, however, the person would, most likely, be guilty of an assault.
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