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​KembaraXtra-Case Law- Khan (1990) CA: Attempted Rape - Mens Rea (Study Guide)
Case Name: Khan (1990) CA
Key Legal Issue: What is the mens rea (guilty mind) required for the offense of attempted rape, specifically concerning the victim's consent?
Facts of the Case:
  • The defendant (D) attempted to have sexual intercourse with a girl without her consent.
  • The attempt failed.
  • D was convicted of attempted rape.
  • D appealed, arguing that the trial judge incorrectly instructed the jury that recklessness regarding the girl's consent was sufficient mens rea.
Court's Decision (Held):
  • Recklessness as to whether the girl consented was sufficient mens rea for attempted rape.
Reasoning (Per Russell LJ):
  • The offenses of rape and attempted rape are identical in all aspects, except that rape involves completed sexual intercourse, while attempted rape does not.
  • Therefore, the mens rea for both offenses must be identical.
  • The mens rea for both rape and attempted rape is:
    1. An intention to have sexual intercourse, PLUS
    2. A knowledge of or recklessness as to the woman's absence of consent.
Important Clarification/Note:
  • The Court of Appeal is not stating that recklessness is sufficient for the mental element of the attempted act itself. For the attempted act (e.g., the attempted penetration), intention is still required.
  • The recklessness element applies to the surrounding circumstances, specifically the victim's lack of consent.
Key Takeaways for Study:
  • Mens Rea for Attempted Rape = Mens Rea for Rape. This is a fundamental principle established by Khan.
  • Two-Part Mens Rea: Remember the two distinct elements:
    1. Intention regarding the act of sexual intercourse.
    2. Knowledge OR Recklessness regarding the lack of consent.
  • Context of Recklessness: Understand that recklessness applies to the circumstance of consent, not the attempted act itself.
  • Distinction between Act and Circumstance: This case highlights the crucial distinction between the mens rea for the intended act (which is always intention in attempts) and the mens rea for the surrounding circumstances (which can be recklessness).
Self-Assessment Questions:
  1. If a defendant intends to have sexual intercourse but genuinely (though unreasonably) believes the victim consents, can they be convicted of attempted rape under the Khan ruling? Why or why not?
  2. What is the significance of the court stating that "the offenses of rape and attempted rape are identical in all respects, except that in the former, sexual intercourse takes place, and, in the latter, it does not"?
  3. Explain, in your own words, what is meant by "recklessness as to the woman's absence of consent."

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