criminal-law england-and-wales
If victim consented to sex, then attempted rapist regards plan as failed. Why &quot;[o]nly the most sadistic rapist would have that state of mind&quot;?
<h2>Questions</h2>

<p>I don't ken the two sentences emboldened in below quote. </p>

<ol>
<li><p>Why "<strong>That will be very hard to prove</strong>"? If "<strong>victim did consent</strong>", then there's no rape. </p></li>
<li><p>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". </p></li>
<li><p>Why "the most sadistic rapist would have that state of mind"? </p></li>
</ol>

<h2>Quote</h2>

<p>Herring. <a href="https://global.oup.com/academic/product/criminal-law-9780198811817?cc=ca&amp;lang=en&amp;" rel="nofollow noreferrer"><em>Criminal Law: Text, Cases, and Materials</em> (8 edn, 2018)</a>. p. 758.</p>

<p>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.</p>

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

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

<blockquote>
  <p>(4) Both <em>Pace and Rogers</em> and <em>Khan</em> are correct. There are different rules for different
  crimes. <em>Khan</em> tells us about the mens rea for attempted rape and <em>Pace and Rogers</em> 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.
  &nbsp; &nbsp; &nbsp; &nbsp; Maybe that rule will be that in cases where recklessness is enough for the full offence
  <em>Khan</em> is to be followed and where suspicion is required <em>Pace and Rogers</em> will be followed.<sup>9</sup>
  &nbsp; &nbsp; &nbsp; &nbsp; 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.</p>
  
  <p><sup>9</sup>The court also suggested that <em>Khan</em> and <em>Pace and Rogers</em> could be distinguished on the basis that
  there could not be an impossible attempt in <em>Khan</em> but there could be in <em>Pace and Rogers</em>. That distinction has been widely rejected by commentators including Simester (2015) and Stark (2014) and is hard to
  justify.</p>
  
  <p>None of these views is entirely satisfactory.<br>
  &nbsp; &nbsp; &nbsp; &nbsp;  There is a dispute between commentators not only as to the law, but as to what it should
  be. Andrew Simester<sup>10</sup> supports the decision in <em>Pace and Rogers</em> because it fits in with the
  standard meaning of the word ‘attempt’:</p>
  
  <blockquote>
    <p>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.</p>
  </blockquote>
  
  <p>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 <em>Pace and Rogers</em> has overruled <em>Khan</em> the law is
  that to be guilty of attempted rape the defendant must intend the victim not to consent. <strong>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.</strong> 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:</p>
  
  <blockquote>
    <p>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.</p>
  </blockquote>
  
  <p><sup>10</sup> Simester (2015). </p>
</blockquote>

<p>Not a lawyer but:</p>

<ol>
<li><p>This is about attempted rape. A person can attempt to rape someone even if (unknown to them) the other party consents.</p>

<p>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. </p></li>
</ol>
