body: Questions
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  I don't ken the two sentences emboldened in below quote. 
  
  
  1. Why "**That will be very hard to prove**"? If "**victim did consent**", then there's no rape.
  2. I agree it's debauched and sadistic to attempt to rape, even if to defendant's surprise, that victim then consents. But I don't ken how "the defendant would regard his plan as having failed".
  3. Why "the most sadistic rapist would have that state of mind"?
  
  
  Quote
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  Herring. [*Criminal Law: Text, Cases, and Materials* (8 edn, 2018)](https://global.oup.com/academic/product/criminal-law-9780198811817?cc=ca&lang=en&). p. 758.
  
  
  I didn't make typo in first sentence in quote beneath. There must be square bracket around
  [2014] EWCA Crim 186 because author didn't neutral citation.
  
  
  
  > 
  > It is fair to say that the law following *Pace and Rogers* [[2014] EWCA Crim 186]](<https://www.bailii.org/ew/cases/EWCA/Crim/2014/186.html>) is in disarray. Commentators have
  >  struggled to explain how *Pace and Rogers* and *Khan* [[[1990] 1 WLR 813] can be reconciled. Here are some
  >  possible views:
  > 
  > 
  > 
  
  
  *Khan* isn't on BAILII. Ask if you want me upload PDF of judgment. I skip to 4th view, pp. 759-760.
  
  
  
  > 
  > (4) Both *Pace and Rogers* and *Khan* are correct. There are different rules for different
  >  crimes. *Khan* tells us about the mens rea for attempted rape and *Pace and Rogers* about the
  >  conversion of property offence. We will need to wait for future cases to tell us the mens rea
  >  for other attempted offences and to develop a more general rule.
  >          Maybe that rule will be that in cases where recklessness is enough for the full offence
  >  *Khan* is to be followed and where suspicion is required *Pace and Rogers* will be followed.9
  >          The disadvantage of this approach is that it seems odd that the phrase ‘intent to commit
  >  the offence’ will have a different meaning depending on which crime is being charged.
  > 
  > 
  > 9The court also suggested that *Khan* and *Pace and Rogers* could be distinguished on the basis that
  >  there could not be an impossible attempt in *Khan* but there could be in *Pace and Rogers*. That distinction has been widely rejected by commentators including Simester (2015) and Stark (2014) and is hard to
  >  justify.
  > 
  > 
  > None of these views is entirely satisfactory.  
  > 
  >          There is a dispute between commentators not only as to the law, but as to what it should
  >  be. Andrew Simester10 supports the decision in *Pace and Rogers* because it fits in with the
  >  standard meaning of the word ‘attempt’:
  > 
  > 
  > 
  > > 
  > > To “attempt” to do something is to try to do it. If only for the sake of speaking clearly to the
  > >  citizens it is meant to guide, a law criminalising the “attempt” to do something should mean
  > >  what it says, i.e. that trying to do the thing is a crime.
  > > 
  > > 
  > > 
  > 
  > 
  > Opponents of the argument that Pace and Rogers should apply to all offences often rely on
  >  the offence of attempted rape. It seems that if *Pace and Rogers* has overruled *Khan* the law is
  >  that to be guilty of attempted rape the defendant must intend the victim not to consent. **That
  >  will be very hard to prove because it means the defendant would regard his plan as having
  >  failed if it turned out the victim did consent. Only the most sadistic rapist would have that
  >  state of mind.** Simester suggests that knowledge or settled belief that the victim was not
  >  consenting should be required. However, that too will be hard to prove— the defendant can
  >  easily claim they thought the victim might not be consenting but did not know for sure that
  >  she was not consenting and that would be hard to disprove. The Khan test, where it would
  >  be sufficient if the defendant realized the victim might not be consenting, seems the most
  >  workable test, but perhaps the test that is hardest to fit into the wording of the legislation.
  >  Simester argues it is contrary to the wording of the statute:
  > 
  > 
  > 
  > > 
  > > A person who advertently runs the risk of harm is not thereby trying to cause that harm.
  > >  Choosing to risk wrongdoing may be morally problematic, but it is not problematic in the
  > >  same way: it is not not a direct attack on the rights and interests of others but, rather, a form of
  > >  endangerment.
  > > 
  > > 
  > > 
  > 
  > 
  > 10 Simester (2015). 
  > 
  > 
  > 
  
  
  
title: If victim consented to sex, then attempted rapist regards plan as failed. Why "[o]nly the most sadistic rapist would have that state of mind"?