R v Khan [1990] CAR 29

Sexual offenses, including rape, hinge on the concept of consent—whether the act was agreed upon willingly or affirmatively.

• Attempted rape occurs when someone takes significant steps towards committing rape without completing the act.

• Recklessness regarding consent is a key factor in such cases, indicating that the accused acted with awareness of the risk of non-consent but proceeded anyway. 

According to the Criminal Attempts Act 1981, section 1(1), a person can be guilty of attempting a crime if they carry out acts that are more than just preparatory.

• This suggests that the principles related to consent and recklessness apply to both attempted and completed rape, with legal outcomes relying on the examination of these elements.

In a criminal case, Mohammed Iqbal Khan, Mahesh Dhokia, Jaswinder Singh Banga and Navaid Faiz (" Appellants") faced charges of attempted rape of a 16-year-old girl, while other youths were on trial for the rape of the same victim.

• The trial judge instructed the jury on the requirements to establish rape.

• If the jury concluded that the victim did not consent to sexual intercourse, they then had to determine whether the individual accused of rape was aware of her lack of consent.

• If the jury was uncertain about the accused's knowledge, they were instructed to consider whether he was reckless as to her consent, defining recklessness as a mindset where the Defendant was indifferent to whether the girl consented or not.

Regarding the charges of attempted rape, the judge told the jury that the same principles used to determine consent in cases of rape also applied to cases of attempted rape.

Based on these instructions, the jury found the Appellants guilty of attempted rape.

The court dismissed the appeals, holding that the offense of rape requires both the intention to engage in sexual intercourse and either knowledge of or recklessness regarding the woman's lack of consent.

• The same principles apply to attempted rape, indicating that the offender's intent in both cases is the same, and the mens rea is identical. 

• The court further explained that recklessness in both rape and attempted rape pertains to the offender's state of mind while engaging in or attempting to engage in sexual intercourse, not to the physical act of achieving or failing to achieve intercourse. 

The judge did not err in instructing the jury that the principles regarding the woman's consent in rape also apply to attempted rape.

This affirmed that the judge's directions to the jury on the issue of consent were consistent with legal standards for both full rape and attempted rape.

The case of attempted rape sheds light on the legal considerations surrounding consent in sexual offenses.

• The court's emphasis on the concepts of consent and recklessness in both completed and attempted rape cases is crucial in determining criminal liability.

The judgment highlights that establishing intent and awareness or recklessness regarding the victim's lack of consent is important in prosecuting rape offenses.

• The requirement to prove an individual's state of mind, whether indifferent or aware of consent, determines the gravity of understanding and respecting consent in sexual encounters.

• Moreover, the court's clarification that recklessness pertains to the offender's mental state during the act rather than the physical outcome reinforces the significance of intentions and perceptions in such cases.

• This distinction ensures that individuals are held accountable not just for the end result but also for their mindset leading up to the act.

This case shows the importance of clarity and consistency in legal interpretations of consent across both completed and attempted rape scenarios.

By aligning the principles governing consent in these cases, the legal system reinforces the fundamental value of consent and accountability in all forms of sexual interactions.

Defendants attempted to rape Victim.

Against their conviction they appealed, saying that their attitude to consent had been “couldn’t care les”, which didn’t fulfil intent requirements of s.1 Criminal Attempts Act.

CA dismissed their appeal saying that intent, in this scenario, was only necessary regarding intent to penetrate and that recklessness or a “couldn’t care less” attitude as to consent was sufficient.

CA say the only difference with actual rape is that penetration didn’t occur and that in intending rape, all that needs be proven is that Defendants intended to do something fulfilling the requirement of rape (i.e. that they intended to penetrate while intentionally or recklessly disregarding Victim’s non-consent).