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.
Decision/Outcome
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.
Updated 20 March 2026
This article accurately summarises the Court of Appeal’s decision in R v Khan [1990] 2 All ER 783 and the legal principles it established at the time. However, readers should be aware of significant subsequent legislative changes that materially affect the continuing relevance of this case.
The Sexual Offences Act 2003 fundamentally reformed the law of rape in England and Wales. Under the 2003 Act, the mens rea of rape no longer includes recklessness as to consent in the Caldwell or subjective sense previously discussed in the case law. Instead, section 1 of the 2003 Act requires that the defendant does not reasonably believe the complainant consents, with reasonableness assessed in all the circumstances (section 1(2)). This is an objective element and replaces the earlier recklessness-based framework. The concept of recklessness as to consent discussed in Khan is therefore no longer part of the current law of rape.
As to attempted rape, the Criminal Attempts Act 1981 continues to govern attempts. The principle from Khan — that the mens rea of an attempt mirrors that of the full offence — remains broadly sound as a general proposition, but the underlying mens rea for rape itself has changed under the 2003 Act, meaning the specific recklessness analysis in Khan no longer reflects current law. Students should treat Khan as historically important for understanding the structure of attempt liability, but should apply the 2003 Act framework when analysing the substantive offence of rape or attempted rape today.
