What is Attempted Rape?

Rape is one of the most serious offences that can be committed and as such it can carry a significant sentence. As a result, attempted rape is an indictable only offence, meaning that it can only be dealt with in the Crown Court. Although the offence of attempted rape refers to the failure to carry out the full offence of rape, an attempt is considered as serious as the primary offence and is similarly sentenced accordingly. If you have been accused of attempted rape, it is vital that you obtain legal advice and representation at an early stage of your case. At Old Bailey Solicitors, we are able to provide diligent and thorough representation with a view to giving you the best chance of being acquitted.

What is an ‘Attempted’ Offence?

An attempted offence is committed when someone takes action with the intent to commit a crime, but they do not fully complete the commission of the offence.  These offences are covered by the main offence as well as under the Criminal Attempts Act 1981. To be guilty of an attempted offence, an individual must take steps which are ‘more than merely preparatory’ to the commission of the full offence.

In simple terms, to constitute an attempted offence, the defendant must:

• Take action that’s more than just preparing to commit the crime
• Intend to commit the crime
• Take actions that are a step towards committing the crime

What Counts as ‘More than Merely Preparatory’?

More than merely preparatory refers to an act that is more than simply preparation for the crime. For instance, if someone buys a gun intending to use it, this is preparatory. However, raising the gun and pointing it at someone would be deemed as more than merely preparatory.

Strict liability offences cannot be attempted as they rely on the full commission of the actus reus (the action to commit the offence) rather than the mens rea (the mental intention to commit an offence).

How are ‘Attempted Offences’ Sentenced?

Attempted offences are often sentenced in the same way as the full offence, as if it had been committed.  As such, the sentencing guidelines for the main offence will be used by the sentencing Judge or Magistrate(s). These guidelines will be used to establish the culpability of the offender and the degree of harm caused.

“Harm” may involve both the attempted level of harm and the actual harm caused to the complainant from the experience of the attempt or knowing that the attempt had been carried out.  Aggravating and mitigating factors can be applied as with the primary offence.

With attempted offences, the culpability aspect will often be the same or higher than in respect of the full offence.  Part of proving an attempted offence may include proving the planning involved in order to establish that an offender’s actions were ‘more than merely preparatory.’  It may be more difficult, however, to establish the level of harm caused.

The fact that the offence was not actually committed will not necessarily lead to a lower sentence.

What is Attempted Rape?

The offence of rape is defined under the Sexual Offences Act 2003 as the intentional penetration of the vagina, anus or mouth of another person with a penis, without the consent of the complainant and without a reasonable belief that this person consents. Rape can also be established if penetrative sexual intercourse takes place with an individual under the age of 12, as this is an offence of strict liability – there is no situation where the complainant can be deemed to have consented and there can be no reasonable belief in terms of age when the complainant is under the age of 12.

For an individual to be guilty of an offence of attempted rape, it must be proved that the offender carried out acts that were more than merely preparatory in committing the full offence, as described above.  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, albeit without success.  This could be for several reasons, for example the victim fighting the individual off, the intervention of 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.

How is Attempted Rape Sentenced?

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 quite 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 categories 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 applicable to the offence – at the lowest end of the range is a sentence of 4 years’ imprisonment, with the top end of the range being 19 years in prison.

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 or a mental health condition.  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 range starting with a community order.  Whether or not the offence is considered sexual assault or attempted rape will depend on the intention of the offender, and whether or not the act taken can be proved as more than merely preparatory to an act of rape.

What to do if you’re accused of Attempted Rape

Attempted rape is a serious criminal offence which can, in rare cases, 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.

If you are facing an investigation or prosecution for an offence 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 and representation throughout the case.