Abstract
Criminal attempts require intent to commit an offence. But what constitutes such intent? Some cases are fairly straightforward. I act with intent to convert stolen goods if I intend that the goods I purchase be stolen. A man acts with intent to commit rape if he intends that the sexual intercourse be non-consensual. Other cases leave room for reasonable disagreement. Did a man intend to convert criminal property when he purchased goods which he suspected might be stolen? And did a man intend to rape a woman when he tried to have intercourse with her and was reckless about consent? Does recklessness as to the circumstance elements of an offence suffice for intent? Building on the view that attempts are failed attacks (as opposed to acts of endangerment), I argue that recklessness about circumstances is not enough for intent since such recklessness amounts to an act of endangerment. This is not to suggest that a man does nothing wrong in trying to have sex with a woman while being reckless about consent; it is to argue that he should be convicted of an endangerment offence, rather than an attempt. If we take seriously the idea that attempts are failed attacks, and that attacks and endangerments constitute different types of moral wrong, we have good reason to preserve this distinction in our offence labels by insisting that the fault element for attempts should require at least knowledge or belief as to the relevant circumstances of an offence.
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Notes
Whybrow [1951] 35 Cr. App. R. 141, 147.
Criminal Attempts Act 1981, c. 47, s. 1(1) (U.K.).
Criminal Damage Act 1971, c. 48, s. 1(1) (U.K.).
Brackets are used to indicate the content of an agent’s intention. An agent who acts with an intention [to have non-consensual intercourse] intends that the sexual encounter be non-consensual. Contrast this with an agent who intends [to have intercourse]. The latter does not intend for the encounter to be non-consensual, but may proceed with non-consensual intercourse anyway. See R. A. Duff, Criminal Attempts, chs. 1.1 & 1.2 (1996).
See R. A. Duff, “Guiding Commitments and Criminal Liability for Attempts.” Criminal Law and Philosophy, 6 (2012), 421–2.
See R. A. Duff, “Recklessness in Attempts (Again).” Oxford Journal of Legal Studies, 15 (1995), 309–25; G. Yaffe, Attempts, ch. 5 (2011).
Khan [1990] 1 W.L.R. 813.
Antony Duff and Gideon Yaffe both argue that D should be guilty of attempted rape if D tries but fails [to have sex with V], is reckless about consent, and V does not consent. Likewise, D should be guilty of an attempt to convert stolen property if D tries but fails [to purchase goods], is recklessness about the nature of the goods, and the goods are stolen. On both their views, D would not be guilty of an attempt if the relevant circumstance does not exist—i.e., if V does consent, or if the goods are not stolen. See Duff, supra note 4, at 221–8; G. Yaffe, “Criminal Attempts”, Yale L.J., 124 (2014), 137–40.
Khan, supra note 7, at 819.
Pace [2014] EWCA Crim. 186.
Ibid, para. 81.
Law Com. No. 102, Attempt, and Impossibility in Relation to Attempt, Conspiracy and Incitement (1980), para. 2.14.
Ibid, para. 2.17.
Law Com. No. 177, A Criminal Code for England and Wales (1989), paras. 13.44–45.
See the latest Law Commission report on this issue: Law Com. No. 318, Conspiracy and Attempts (2009), paras. 8.133 & 8.137. Para. 8.133 recommends that where the substantive offence does not contain a fault requirement in relation to the circumstance element of the offence (or if the fault requirement is objective—e.g., negligence), then attempts to commit that offence should require subjective recklessness as to the circumstance element of that offence. Para. 8.137 recommends that where the substantive offence requires subjective fault (e.g., intention, knowledge, belief, recklessness) in relation to the circumstance element of the offence, then attempts to commit that offence should require the same fault element in relation to the circumstance element.
See A. P. Simester, “The Mens Rea of Criminal Attempts.” Law Quarterly Review, 131 (2015), 169–73; J. J. Child & A. Hunt, “Pace and Rogers and the Mens Rea of Criminal Attempt: Khan on the Scrapheap?” The Journal of Criminal Law, 78 (2014), 220–5; P. Mirfield, “Intention and Criminal Attempts.” Criminal Law Review, 2 (2015), 142–8.
An important qualification here is that, with respect to the circumstance element of an offence, intention is satisfied if the agent acts with knowledge of belief as to the existence of the relevant circumstance. See Simester, supra note 16, at 170–1.
See the discussion in Sect. 3 of this paper. See also F. Stark, “The Mens Rea of a Criminal Attempt.” Arch. Rev., 3 (2014), 7.
See G. Virgo, “Criminal Attempts—the Law of Unintended Circumstances.” Cambridge Law Journal, 73 (2014), 244–7; M. Dyson, “Scrapping Khan?” Crim. L. R., 6 (2014), 445–50; Stark, supra note 18.
Several theorists have defended the approach in Khan and argued that recklessness as to the circumstance elements of an offence should be enough not just for attempted rape, but for attempts to commit numerous other offences, including criminal damage or converting stolen property. These theorists argue that recklessness as to the relevant circumstance is enough so long as the agent acted with a direct intention as to the consequence/conduct element of the offence, and recklessness as to the circumstance elements suffices for the complete offence. See R. A. Duff, “The Circumstances of An Attempt.” Cambridge Law Journal, 50 (1991), 100–19; Yaffe, supra notes 6 & 8. For criticisms of Duff’s view and of Khan, see L. Alexander, “Duff on Attempts.” in Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (R. Cruft, M. H. Kramer, & M. R. Reiff eds., 2011), 227–9; A. P. Simester et. al., Criminal Law: Theory and Doctrine, 363–5 (7th ed. 2019).
For the distinction between attacks and endangerments, see R. A. Duff, “Criminalizing Endangerment.” La. L. Rev. 65 (2004), 941–65.
See also Yaffe, supra note 6.
Duff, supra note 4, chs. 8.5 & 13.3.
See infra note 30.
Duff, supra note 21, at 942–6.
See Duff, supra note 4, at 20–1, ch. 5, 364–6, 370.
See especially Simester, supra note 16.
See supra note 18.
See Duff, supra note 21, at 942–5.
On Duff’s distinction between attacks and endangerments, the latter need not involve fault. I endanger another person if I create a risk of harm to them, “whether or not I realize, or could reasonably be expected to realize, the risk that I create”. See Duff, supra note 21, at 944.
Ibid, 945.
Ibid, 944–5.
See supra note 30. In this paper, I use “endangerment” to refer to culpable endangerments (i.e., where the agent is aware of or should reasonably be aware of the risk she creates). Only culpable endangerments exhibit an agent’s lack of proper concern for others.
See Duff, supra note 21, at 943–5.
See Duff, supra note 21, at 947–8, 958. See also Duff, supra note 21, at 950–1 on the notion of “intended endangerment”. If I utter a threat with intent to frighten someone, then the action is an attack even if I do not intend to carry out my threat—the action is an attack because it is aimed at someone or some protected interest.
See Duff, supra note 21, at 945–9; especially at 946.
A. P. Simester, “Why Distinguish Intention from Foresight?” in Harm and Culpability (A. P. Simester & A. T. H. Smith eds., 1996), 71.
Note that we need not accept Duff’s distinction between attacks and endangerments to think that it would nonetheless be worthwhile to differentiate intention and recklessness as significantly different kinds of culpability. For a critique of the attack–endangerment distinction, see K. K. Ferzan, “The Structure of the Criminal Law.” Criminal Justice Ethics, 28 (2009), 223. And see L. Alexander & K. K. Ferzan, Crime and Culpability, ch. 2 (2009), where they argue that purpose and knowledge are forms of recklessness.
Duff, supra note 21, at 949.
Simester et al., supra note 20, at 461.
Criminal Damage Act 1971, c. 48, s. 1(1) (U.K.).
Duff, supra note 21, at 944.
See supra notes 30 & 33.
Duff, supra note 4, at 20–1.
Duff, supra note 21, at 951.
Duff, supra note 4, at 20.
See Yaffe, supra note 8, at 103–5, where he argues that appeals to ordinary language are not always helpful because ordinary language contains (at least) two different senses of “trying”—i.e., a wide sense and a narrow sense. The wide sense would count as attempts some actions which ought not to be criminalized, while the narrow sense would not count as attempts some actions which ought to be criminalized. I discuss this issue below in Sect. 3.
See Duff, supra note 4, at 20–1. See also Yaffe, supra note 8, at 107; Yaffe, supra note 6, at 2.
See infra text accompanying note 59–61, where I explain why acting with knowledge or belief as to the circumstance element of an offence is enough for an attempt (so long as the agent acted with a direct intention as to the conduct or consequence element of the offence).
Cases involving intentional risk impositions may be seen as both an attack and an endangerment, but it is important to note that this does not show that the boundary between attacks and endangerments might be crossed since different interests are being attacked and endangered. For example, suppose I set fire to your house, intending to frighten (but not harm) you. Given my direct intention to frighten you, I attack (rather than endanger) your interest in feeling secure. My action exhibits an active hostility towards your interest in not being frightened, and the action is an attack with respect to this interest. However, in setting the fire, I also create a substantial and unreasonable risk to your physical wellbeing, which is a different interest. I endanger (but not attack) your physical wellbeing since it is not my intention to harm you. In relation to this interest, the action is an endangerment. See Duff, supra note 21, at 950–1. My thanks to two anonymous reviewers for pressing me to clarify this point.
On the issue of fair labelling, see J. Chalmers & F. Leverick, “Fair Labelling in Criminal Law.” The Modern Law Review, 71 (2008), 217.
Duff, supra note 4, at 372.
A common objection to talking about the conduct, consequence, and circumstance elements of an offence is that it commits us to drawing difficult and impractical distinctions (e.g., what are the conduct/consequence/circumstance elements for any given offence?). In relation to the discussion at hand, this objection has so far proven unconvincing. First, most theorists agree that attempts require a direct intention as to the consequence or conduct element of an offence, but disagree about the mental state that is required as to the circumstance element. This means that we only need to identify the circumstance element of the offence, but need not draw any clear distinctions between the consequence/conduct element. Second, even if it is difficult to identify the circumstance element for most criminal offences, discussions on this issue over the last forty years have shown that we seem to agree on the circumstance elements in at least a handful of key cases—e.g., criminal damage, rape.
This is the disagreement between subjectivists and objectivists over the proper description of an action—i.e., whether the proper description is just a matter of the content of the agent’s intention, or whether it should include facts about the tree. As we will see, my arguments here lead to the same conclusion as that of the subjectivist position—i.e., I did not attack my neighbour’s tree. However, this paper and my argument here remain neutral on the subjectivist–objectivist debate. See Duff, supra note 4, chs. 6–8 for the subjectivist–objectivist debate. See also Yaffe, supra note 47. I am thankful to an anonymous reviewer for pressing me to clarify this point.
See Duff, supra note 20, at 103, 118. Duff would argue that, in my example, we could legitimately say that I attacked my neighbour’s property in the sense that I attacked something which in fact belongs to my neighbour. Saying that I attacked my neighbour’s property, or that I attempted to damage my neighbour’s property, would, in this sense, accord with ordinary language and with the ordinary meaning of “attempt”. However, as Duff (and other theorists) would caution, conformity with ordinary language alone cannot decide the matter at hand. As I will show later in Sect. 4, there are good, independent reasons for offence labels to follow our ordinary conceptions of “attempts” or “attacks”.
Duff argues that there is an objective dimension to attacks. An action, which is intended as an attack (i.e., intended to harm a protected interest), may fail to amount to an attack if it is not connected to the world in appropriate ways. Similarly, an action, which is not intended as an attack (e.g., I intend [to cut down this tree]), may amount to an attack if it is in fact aimed at a protected interest. If I try [to cut down this tree] and the tree belongs to my neighbour, then my action is an attack, according to Duff, since my neighbour could plausibly accuse me of trying to damage her tree. See Duff, supra note 4, at 219–33, 371–4.
Duff, supra note 4, at 373.
For case (2), in response to my neighbour’s initial accusation of “Your tried to cut down my tree”, I could also reply in all honesty that I would not have tried to cut down her tree had I known that it belonged to her. This line of defence would likewise elicit from my neighbour replies that are typical of endangerments, such as “Why did you not check?” or “You should be careful in the future”.
Pace held that “as a matter of ordinary language and in accordance with principle, an ‘intent to commit an offence’ connotes an intent to commit all the elements of the offence”, but that acting with knowledge as to the circumstance element of the offence would suffice for “intent to commit an offence” so long as the agent acted with a direct intention as to the consequence element of that offence. See Pace, supra note 10 at 62, 65–72.
See supra note 58.
See Yaffe, supra note 6, ch. 5.
Simester et al., supra note 20, at 511.
Duff is a notable exception; he seems to be committed to the view that negligence as to consent is enough for attempted rape. See Duff, supra note 20, where he argues that an agent commits an attempt if he acts with a direct intention as to the consequence or conduct element of the offence, and recklessness as to the circumstance element of that offence (assuming recklessness suffices for the substantive offence). Then see his “Recklessness and Rape.” The Liverpool Law Review 3 (1981), 49–64, where he argues that, in the context of rape, recklessness need not require an actual awareness of a risk. According to Duff, the definition of recklessness (in the context of rape) should include negligence since the negligent agent manifests the same kind of serious disregard for others that is manifested by those who are consciously aware of a risk of non-consent. So, the agent who tries but fails [to have sex with another person] and does so with an honest but unreasonable and mistaken belief in consent would be guilty of attempted rape. This position also follows from another formulation of Duff’s view. See Duff, supra note 6, at 316: an agent has the requisite intent for an attempt if “he would necessarily commit an offence in carrying it out”. Given this formula, the defendant who is negligent about consent would be guilty of attempted rape since he would necessarily commit rape if he succeeded in [having sex with V], where V does not consent. In contrast to Duff’s position, see Yaffe, supra note 8, at 139, where he argues that negligence about consent is not enough for attempted rape. See also the latest recommendation from the Law Commission (2009), supra note 15, para. 8.133, where even if negligence as to a circumstance element would suffice for the substantive offence, an attempt to commit that offence would still require subjective recklessness as to that circumstance.
Model Penal Code (Official Draft and Revised Comments) s. 202 (1985). See also Simester et al., supra note 20, at 155; a conscious awareness of the risks involved is the standard English definition of recklessness.
Cogan & Leak [1967] Q.B. 217.
Simester et al., supra note 20, at 511–2.
And since those who try [to have intercourse] typically try or expect to succeed, the negligent defendant, who tried but failed [to have intercourse] with a non-consenting person, should know that his conduct is wrong from the complete offence of rape.
See 2015 Planned Parenthood survey on consent, which suggests there is confusion surrounding consent among a significant portion of adults in the United States, and that a significant portion continue to hold misconceptions about sex and consent. https://www.plannedparenthood.org/files/1414/6117/4323/Consent_Survey.pdf
This point is obvious if we think about the demands we make of others in our daily interactions with them. Suppose you work in an office building with inattentive co-workers who regularly fail to hold the door for you when you enter the building behind them. If you want your co-workers to change their behaviour, it will not help to accuse your co-workers of trying to shut the door in your face or asking them to stop trying to shut the door in your face. For one thing, they have not done what you have accused them of doing, which suggests some kind of ill will towards you. But more importantly, your description of what you would like them to do fails to capture the action that you would actually like them to perform, which is to pay sufficient care and attention to others.
T. H. Jones & I. Taggart, Criminal Law, paras. 9–40 (7th ed. 2018).
Normand v Robinson, 1994 S.L.T. 558; Robertson v Klos, 2006 S.C.C.R. 52.
I am grateful to an anonymous reviewer for bringing to my attention the offence of culpable and reckless conduct in Scotland. There is a question of whether we should use such an offence to prosecute a reckless actor who tries to have sex with an actually consenting person. I will leave this question unanswered for this paper.
Simester et al., supra note 20, at 154.
In the context of rape, an agent is reckless as to consent if he is aware of a risk that the complainant may not consent, or if he does not believe that she consents. See Simester et al., supra note 20, at 161–2.
See Duff, “Recklessness and Rape”, supra note 63.
Ibid, 55–6.
Ibid, 59–61.
Ibid, 56.
One way to think about cases like Pace would be analogous to Duff’s objectivist account of attempts—e.g., like attacks, we might say that endangerments must have an objective dimension such that the action is not an act of endangerment unless there is something or someone who is actually endangered; see Duff supra note 56.
Acknowledgements
I am grateful to Antony Duff, Andrew Cornford, Elinor Mason, Rowan Cruft, Martin Smith, and three anonymous reviewers of this journal for their invaluable comments on previous drafts of this paper. I am also grateful to Ben Sworn, Thom Heyd, and Rosa Hardt for their illuminating discussions.
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Yang, D. Recklessness and Circumstances in Criminal Attempts. Criminal Law, Philosophy 17, 359–380 (2023). https://doi.org/10.1007/s11572-022-09626-8
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DOI: https://doi.org/10.1007/s11572-022-09626-8