R v Khan [1990] 1 WLR 813

Several defendants were prosecuted after attempting sexual intercourse with a young woman who did not consent. The acts occurred under the rape law applicable before the Sexual Offences Act 2003. The prosecution alleged that the defendants intended intercourse and were reckless as to the absence of consent. They challenged their convictions for attempted rape, arguing that the intention requirement for an attempt demanded more concerning consent. The appeal therefore raised the distinction between an intended act and the defendant's state of mind about a circumstance in which the act would occur.

Under the law then applicable, did attempted rape require intention concerning the absence of consent, or could intent to have intercourse combined with recklessness as to consent satisfy the offence?

The Court of Appeal dismissed the appeals against conviction. Under the historical rape framework, the intended conduct was sexual intercourse, while absence of consent was a circumstance concerning which the relevant mental element could be knowledge or recklessness. The court did not require the defendants to intend the complainant's lack of consent as a separate consequence. The acts also had to satisfy the statutory threshold for an attempt. This analysis must remain tied to the offence and legislation then applicable. The Sexual Offences Act 2003 subsequently changed the rape framework, so the decision is not authority for using the former recklessness test as a current direction on consent.

In the historical offence considered in Khan, an intention to have intercourse could combine with recklessness about non-consent to establish attempted rape. The decision distinguishes the mental element for intended conduct from that concerning an offence circumstance; the later statutory framework requires separate analysis.

Khan is valuable in essays about whether intention for attempts must extend identically to every element of an offence. It should be compared carefully with later attempt cases such as Pace and Rogers, rather than treated as a universal rule about circumstances. For sexual-offence problems, the date of the conduct matters: the 2003 Act introduced a framework involving reasonable belief in consent. Historical and modern rules should not be combined into a hybrid test that no authority establishes.