Attempt to Rape
An attempt to rape is recognized as a misdemeanor offense under the laws of the state[i]. Attempt to rape is also called a specific intent crime in law; it is an offense distinct from rape and assault with intent to rape[ii]. Elements that constitute an offense of attempt to rape are different from the elements that constitute rape and assault with intent to commit rape.
Elements that constitute attempt to rape are:
- there must be an overt act[iii]; and
- there must be an intention to rape when a defendant commits an overt act[iv].
In order to prove an offense of attempt to commit rape there must be commission of an overt act. Any overt act beyond mere preparation and in furtherance of intent is sufficient and it does not require a last proximate act prior to the consummation of sexual intercourse[v].
Generally, there can be no attempt to commit a crime unless the intent to commit it exists at the time when an attempt is made. Therefore, to constitute an attempt to commit rape upon a female under age of consent, intention to know the girl carnally must have existed in the mind of an accused at the very time when he did an overt act or acts[vi].
Since intention is a state of mind that can be evidenced only by words or conduct of a person who is claimed to have entertained it, specific intent to commit rape like any other fact can be shown by the circumstances[vii]. However, the specific intent to commit rape can be inferred from conduct if such intention follows naturally from the conduct proven. For instance, when the immediate, direct, and necessary consequences of voluntary acts of an accused points with reasonable certainty to a specific intent to commit rape, intention is established[viii].
Evidence showing an accused person’s voluntary attempt to remove complainant’s clothes to expose his/her private parts would be sufficient to support conviction for attempted rape, even though no further actions were taken to commit an offense of rape. But it is not mandatory that prosecution must give evidence upon the fact that a defendant touched a victim’s sexual organs or removed clothing.
[i] Burton v. State, 8 Ala. App. 295 (Ala. Ct. App. 1913).
[ii] State v. Hetzel, 159 Ohio St. 350 (Ohio 1953).
[iii] Christensen v. State, 33 Md. App. 635 (Md. Ct. Spec. App. 1976).
[iv] Weaver v. State, 16 Okla. Crim. 564 (Okla. Crim. App. 1919).
[v] State v. Muzzy, 190 Ore. App. 306 (Or. Ct. App. 2003).
[vi] Kitchen v. State, 66 Okla. Crim. 423 (Okla. Crim. App. 1939).
[vii] Moody v. Commonwealth, 28 Va. App. 702 (Va. Ct. App. 1998).
[viii] Bell v. Commonwealth, 11 Va. App. 530 (Va. Ct. App. 1991).