You may not get what you want ...

The crime of attempting to commit a crime has come under scrutiny in L v R [2006] NZSC 18 (30 March 2006), which concerned the state of mind required for liability.

The facts of L were extraordinary. The charge, faced by L, a 49 year old woman, was attempting to sexually violate a 15 year old male. She tried to cause his (presumably erect) penis to penetrate her vagina, being reckless as to whether or not he consented to that. In the circumstances, it seems to have been the case that his lack of consent should have been apparent to her.

The legal question was whether, to be liable for the attempt, L had to intend that he not consent, or was it sufficient that she merely be reckless (ie that she knowingly took a risk) as to his lack of consent. The question arose because the crime of attempting to commit a crime requires the accused to have an intent to commit that crime.

Plainly, L intended that the penis enter her own vagina, and she did acts in an effort to bring that about. Was that intent sufficient? Or, in addition, did she need to be reckless about the male’s lack of consent? Or, did she need to intend both penetration and his lack of consent?

There has been some division among the jurists on this general issue. As Simester and Brookbanks, Principles of Criminal Law, point out at para 6.1.1, the decision is one of public policy. Criminalising attempts is often justified because of the danger posed to society by a person who sets out to cause harm. That is, one whose intention is dangerous, albeit that his (here, her) acts may not constitute actual harm. This sort of deliberation suggests that intention should be given a narrow meaning, so as to exclude people who are reckless about circumstances such as consent. But, that narrow meaning would create anomalies (as has been pointed out by Professor Ashworth, cited ibid): imagine two men who set out to have sexual intercourse with two women. Both men are reckless as to consent, and neither woman consents. One man succeeds in penetration, and is guilty of rape. The other fails to penetrate, and, under this narrow view, is guilty of neither rape nor attempt to rape.

In L the Supreme Court held that recklessness (in the sense of absence of a reasonable belief in consent) as to circumstances is sufficient for liability for the attempt: what has to be intended here is the act of penetration.

All well and good. We are left with a lingering image of the facts of the case. In future, will people charged with sexual violation claim they did not consent, and that the other person should be charged?