The Circumstances of an Attempt

Abstract

This paper defends a version of the doctrine that the mens rea of a criminal attempt should consist in intention as to the central or consequential aspects of the actus reus of the complete offence, even when such intention is not required for that complete offence, but need only involve recklessness as to the circumstantial aspects of the complete offence if such recklessness suffices for the complete offence. Attempted rape should require an intention to have sexual intercourse, but only recklessness as to the fact that the woman does not consent. Attempted criminal damage should require an intention to destroy or damage (though the complete offence requires no such intention), but only recklessness as to the fact that what is destroyed or damaged is“property belonging to another”.