Sentencing Guidelines for Attempted Rape

What is Attempted Rape?

Attempted rape occurs when an individual attempts to commit the act of rape but fails to carry out the full offence. In other words, an individual can be said to have committed attempted rape if they have made an attempt to intentionally penetrate another individual’s vagina, anus, or mouth with a penis, without the person’s consent, without success. This could be for several reasons, for example the victim fighting the individual off, the prevention of the individual from doing so by a third party, or the perpetrator withdrawing from the attempt after changing their mind. Despite the failure to commit the full offence, attempted rape is treated the same as the full offence of rape and the sentencing guidelines are subsequently similar.

Criminal Attempts Act 1981

Attempted rape is then sentenced according to the Criminal Attempts Act 1981 and therefore the general law of attempt applies. This means that to charge an individual with attempted rape, the prosecution must be able to prove that the defendant did the act with the requisite intent (to penetrate the individual without their consent) and that this act was more than merely preparatory to the commission of the full offence. ‘More than merely preparatory’ means that the defendant has got as far as having embarked on the commission of the offence, and has made more than the initial steps toward committing the offence. It has been established through case law that the act does not necessarily need to be unequivocally sexual in nature, it is sufficient for there to be evidence from which intent can be inferred. Furthermore, an attempt at penetration does not have to be made for an individual to be found guilty of attempted rape, only the intention to penetrate needs to be proved.

Sentencing Guidelines for Attempted Rape

If the prosecution can prove that an individual had the intent and has committed an act that can be considered as more than merely preparatory, then the defendant will be found guilty of attempted rape and sentenced accordingly. As is common for most offences under the Criminal Attempts Act 1981, sentencing guidelines for attempted rape are similar to that for the commission of the full offence.

Like rape, attempted rape is an indictable only offence. This means that it is treated as a serious criminal offence that is triable only on indictment (trial by jury) in the Crown Court. Whether the charge is that of attempted rape, or the full offence, the maximum sentence is life imprisonment. Although life imprisonment is fairly rare and reserved for the most extreme cases, a custodial sentence is almost inevitable for an individual found guilty of attempted rape, with a likely sentence starting point of 4-5 years imprisonment.

The length of sentence depends on a number of factors, including the category of harm and culpability. Harm refers to the nature of the offence and the harm caused to the victim – both physically and psychologically. Culpability is weighed by a number of different factors, such as the degree of planning, abuse of a position of trust or the use of drugs and alcohol on the victim to facilitate the offence. The level of harm and culpability determine the starting point and range for the sentence available to the defendant – the lowest sitting at 4 years imprisonment and the maximum sentence being 19 years.

The court may also take into account both mitigating and aggravating factors when sentencing an individual for attempted rape. Mitigating factors include the consideration of the defendant having no previous criminal convictions, while aggravating factors may include specific targeting of a vulnerable individual, or the use of a weapon or other item to frighten or injure the victim. The court can use these factors to adjust the sentence upwards or downwards accordingly.

Other Outcomes

Since there is often considerable overlap in respect of offences brought under the Sexual Offences Act 2003, it is possible that offenders may be convicted of a different, or even a lesser, charge. For instance, in respect of rape, a defendant may alternatively be found guilty of assault by penetration or sexual assault if the full requirements of the offence were not completed. Due to the difficulty in proving both the intention and the ‘more than merely preparatory act’, it is particularly common for offences of attempted rape to be charged as an alternative offence, such as sexual assault. In these instances, the sentencing guidelines for sexual assault will apply. Sexual assault is an offence which is triable either way and has a lower maximum sentence of 10 years custody and a minimum sentence of a community order.  Whether or not the offence is considered sexual assault or attempted rape will depend on the intention of the victim, and whether or not the act taken can be proved as more than merely preparatory.

What to do if you’re accused of Attempted Rape

Attempted rape is a serious criminal offence which can result in a maximum sentence of life imprisonment. If you are charged with attempted rape there is a high risk that you will receive a custodial sentence, measured in years, and so you should seek legal representation as soon as possible.

How We Can Help

If you are facing an investigation or prosecution of attempted rape, you can contact one of Old Bailey Solicitors’ specialist criminal solicitors who will talk you through your options and provide you with the best advice possible to help you move forward.

We will work tirelessly to protect you and your interests. Please contact us today if you are in need of clear-cut, honest and discreet legal advice.