R v Khan [1990] 2 All ER 783

Mens rea of attempted rape - Recklessness

Facts

Four men, Mohammed Iqbal Khan, Mahesh Dhokia, Jaswinder Singh Banga and Navaid Faiz (A) were charged with the attempted rape of a 16-year-old girl, B. A had unsuccessfully tried to engage in sexual intercourse with B. The trial judge directed the jury that the issues relevant to the mens rea for attempted rape were the same as for a charge of rape. It was therefore directed that the offences of both rape and attempted rape require 1) an intention to have sexual intercourse, and 2) knowledge of, or recklessness as to, the absence of consent. The men were convicted and appealed.

Issue

A claimed that the trial judge was wrong to direct the jury on the completed offence of rape, without adequately addressing the mens rea required for the offence of attempted rape and the issue of recklessness. The issue in question was therefore whether the mens rea for attempted rape could be analysed the same way as the mens rea for rape.

Held

The mens rea for rape and attempted rape can be analysed in the same way. Both the offence of rape and the attempt require identical mens rea of 1) an intention to have sexual intercourse and 2) knowledge of, or recklessness as to, the absence of consent. Recklessness was relevant in both the offence of rape and attempted rape not to the physical act of the sexual intercourse (the actus reus) but to the offender's state of mind in engaging in sexual intercourse (the mens rea). The appeals were dismissed and the convictions upheld.