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Questions

I don't ken the two sentences emboldened in below quote.

  1. Why "That will be very hard to prove"? If "victim did consent", then there's no rape.

  2. I agree it's debauched and sadistic to attempt to rape, even if to defendant's surprise, that victim then consents. But I don't ken how "the defendant would regard his plan as having failed".

  3. Why "the most sadistic rapist would have that state of mind"?

Quote

Herring. Criminal Law: Text, Cases, and Materials (8 edn, 2018). p. 758.

I didn't make typo in first sentence in quote beneath. There must be square bracket around [2014] EWCA Crim 186 because author didn't neutral citation.

It is fair to say that the law following Pace and Rogers [[2014] EWCA Crim 186]](https://www.bailii.org/ew/cases/EWCA/Crim/2014/186.html) is in disarray. Commentators have struggled to explain how Pace and Rogers and Khan [[[1990] 1 WLR 813] can be reconciled. Here are some possible views:

Khan isn't on BAILII. Ask if you want me upload PDF of judgment. I skip to 4th view, pp. 759-760.

(4) Both Pace and Rogers and Khan are correct. There are different rules for different crimes. Khan tells us about the mens rea for attempted rape and Pace and Rogers about the conversion of property offence. We will need to wait for future cases to tell us the mens rea for other attempted offences and to develop a more general rule.         Maybe that rule will be that in cases where recklessness is enough for the full offence Khan is to be followed and where suspicion is required Pace and Rogers will be followed.9         The disadvantage of this approach is that it seems odd that the phrase ‘intent to commit the offence’ will have a different meaning depending on which crime is being charged.

9The court also suggested that Khan and Pace and Rogers could be distinguished on the basis that there could not be an impossible attempt in Khan but there could be in Pace and Rogers. That distinction has been widely rejected by commentators including Simester (2015) and Stark (2014) and is hard to justify.

None of these views is entirely satisfactory.
        There is a dispute between commentators not only as to the law, but as to what it should be. Andrew Simester10 supports the decision in Pace and Rogers because it fits in with the standard meaning of the word ‘attempt’:

To “attempt” to do something is to try to do it. If only for the sake of speaking clearly to the citizens it is meant to guide, a law criminalising the “attempt” to do something should mean what it says, i.e. that trying to do the thing is a crime.

Opponents of the argument that Pace and Rogers should apply to all offences often rely on the offence of attempted rape. It seems that if Pace and Rogers has overruled Khan the law is that to be guilty of attempted rape the defendant must intend the victim not to consent. That will be very hard to prove because it means the defendant would regard his plan as having failed if it turned out the victim did consent. Only the most sadistic rapist would have that state of mind. Simester suggests that knowledge or settled belief that the victim was not consenting should be required. However, that too will be hard to prove— the defendant can easily claim they thought the victim might not be consenting but did not know for sure that she was not consenting and that would be hard to disprove. The Khan test, where it would be sufficient if the defendant realized the victim might not be consenting, seems the most workable test, but perhaps the test that is hardest to fit into the wording of the legislation. Simester argues it is contrary to the wording of the statute:

A person who advertently runs the risk of harm is not thereby trying to cause that harm. Choosing to risk wrongdoing may be morally problematic, but it is not problematic in the same way: it is not not a direct attack on the rights and interests of others but, rather, a form of endangerment.

10 Simester (2015).

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Not a lawyer but:

  1. This is about attempted rape. A person can attempt to rape someone even if (unknown to them) the other party consents.

    2/3. On this intepretation of the law, the prosecution must show the defendent was not just uncaring or negligent about consent but it was important to them that the victim was unconsenting. Only the most sadistic of rapists are going to be disappointed at finding their attempted victim to be willing.

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