• In the case of R v Khan [1990] 1 WLR 813, [1990] Crim Lr 519, an important distinction was made between rape and attempted rape – sexual intercourse takes place in the former, unlike the latter, but the latter also provides that there should be an act which is more than preparatory
  • Recklessness in rape/attempted rape is not about the physical act, but D’s state of mind

Facts of the Case

  • Charges were brought against the four Ds for the attempted rape of a 16-year-old girl after they had met her in a discotheque in Uxbridge and taken her to their car 
  • All of the appellants (Ds) attempted to have sexual intercourse with the girl, but failed (though the girl performed such acts with three other people brought to the scene by the Ds)
  • Afterwards, the girl went to a friend’s place and made a complaint from there
  • Attempted rape was covered jointly under s.1(1) of the Criminal Attempts Act 1981 (dealing with the attempt part of the offence) and s.1(1) of the Sexual Offences (Amendment) Act 1976 (covering the rape itself)
  • Ds were reckless as to whether the woman consented to the sexual intercourse
  • Ds’ mental state or recklessness did not relate to the activity of raping but to the absence of the girl’s consent

Issues in R v Khan [1990] 1 WLR 813, [1990] Crim Lr 519

  • No question of striving to achieve a reckless state of mind could arise in these circumstances
  • Ds appealed against their conviction (though appeals against sentence were also submitted, with different outcomes for each D)

Held by the Court of Appeal (Criminal Division)

  • Appeal dismissed – appeals against conviction dismissed; two of Ds (including Khan) appealed against their sentences, but these were dismissed; the other two appellants also appealed against their sentences and their appeals were allowed, with various subsequent sentences

Lord Justice Russell

Russell LJ read out the judgement and his main focus was on comparing the requirements for constituting rape and attempted rape, as the quotes below suggest

  • ‘In our judgment an acceptable analysis of the offence of rape is as follows: (1) the intention of the offender is to have sexual intercourse with a woman; (2) the offence is committed if, but only if, the circumstances are that (a) the woman does not consent and (b) the defendant knows that she is not consenting or is reckless as to whether she consents.’ [p.787]
  • ‘Precisely the same analysis can be made of the offence of attempted rape: (1) the intention of the offender is to have sexual intercourse with a woman; (2) the offence is committed if, but only if, the circumstances are that (a) the woman does not consent and (b) the defendant knows that she is not consenting or is reckless as to whether she consents.’ [p.787]

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