Definition
An attempt to commit rape is the criminal offense of taking a direct step toward the commission of rape with the intent to complete the act, falling short only because of interruption, resistance, or some other circumstance preventing completion. The offense captures conduct that goes beyond mere preparation — the actor has formed the specific intent to commit rape and has done some overt act in furtherance of that intent — but the sexual act itself is not completed.
Because rape requires penetration (under traditional common law definitions) or some other specified sexual act (under modern statutory formulations), an attempt arises when all elements of the underlying offense would be present but for the failure to accomplish that final act. The offense is distinguishable from the completed crime solely by the absence of consummation.
Common Confusion
ATTEMPT TO COMMIT RAPE vs. ASSAULT WITH INTENT TO COMMIT RAPE: These terms are used interchangeably in many historical sources and older statutes, but they are not always synonymous. In some jurisdictions, assault with intent to commit rape required proof of an assault as an independent element — a present ability to apply force — while attempt focused on the proximity of the act to completion without necessarily requiring a technical assault. Researchers encountering both terms in the same corpus should treat them as potentially distinct charges rather than assume equivalence. Modern statutes have largely collapsed the distinction.
ATTEMPT TO COMMIT RAPE vs. SEXUAL ASSAULT: Modern jurisdictions have broadly replaced rape and its attempt with tiered sexual assault or criminal sexual conduct statutes. What historical sources call "attempt to commit rape" may now be charged as a specific degree of sexual assault. The older terminology will not always map cleanly onto contemporary offense categories.
Core Elements
The elements of attempt to commit rape generally track the general law of criminal attempt applied to the specific underlying offense:
1. SPECIFIC INTENT: The actor must intend to commit rape — intent to achieve penetration (or the statutory equivalent) by force and without consent. A general intent to apply force, without intent to complete the sexual act, is insufficient.
2. OVERT ACT: The actor must take some direct step beyond mere preparation. What constitutes a sufficient overt act has been contested across jurisdictions and eras. Proximity to completion matters: the closer the conduct to the completed offense, the clearer the attempt.
3. FAILURE OF COMPLETION: The act must fall short of completion. If the offense is completed, the charge is rape, not attempt. The reason for non-completion — victim resistance, third-party intervention, or the actor's own abandonment — does not negate the attempt, though voluntary abandonment is a defense in some jurisdictions.
4. ABSENCE OF CONSENT: Because rape requires lack of consent, attempt likewise requires that the intended act would have been non-consensual. Conduct directed at a consenting party cannot constitute an attempt to commit rape.
Why It Matters in Research
This term is a critical bridge concept in historical criminal law research. Before the widespread statutory reform of sex offenses in the latter half of the twentieth century, "attempt to commit rape" and "assault with intent to commit rape" were the primary charging vehicles for serious sexual violence that did not result in completed penetration. Historical case law and charging documents will use these formulations where modern materials would use a specific degree of sexual assault.
Researchers should be alert to several traps. First, the overt act standard was applied inconsistently across jurisdictions and time periods — some courts required very close proximity to completion; others accepted relatively early-stage conduct. Second, corroboration requirements that applied to rape prosecutions in many historical jurisdictions sometimes extended to attempt prosecutions as well, affecting both how cases were charged and how evidence was evaluated. Third, sentencing ranges for attempt varied sharply: in some periods and places, attempt carried penalties nearly equivalent to the completed offense; in others, the gap was substantial. This affects how the offense appears in historical criminal statistics and sentencing studies.
Finally, because modern statutes have restructured these offenses, a researcher using historical dictionaries to interpret modern materials — or vice versa — should not assume terminological continuity. The concept survives; the label often does not.
Historical Dictionary Support
Bouvier's Law Dictionary states that "attempt to commit rape embraces every element of the crime except the actual intercourse." This formulation is precise and accurate as a shorthand: it correctly locates the attempt in all the surrounding conduct — force, intent, absence of consent, overt act — while identifying non-completion of intercourse as the sole distinguishing feature from the completed offense.
The Bouvier formulation, however, leaves important analytical work undone. It does not address what quantum of conduct is required to cross from preparation into attempt, nor does it engage with the specific intent requirement beyond implication. It also reflects a penetration-centered understanding of rape that has since been substantially broadened by statute in most American jurisdictions. Researchers should treat the Bouvier entry as definitionally useful but analytically thin.
Jurisdictional Note
Modern American jurisdictions have largely replaced rape and attempt to commit rape with comprehensive sexual offense statutes that do not use this terminology. In those systems, the conduct formerly charged as attempt to commit rape may fall under a specific degree of criminal sexual conduct or sexual assault. Common law jurisdictions outside the United States may retain formulations closer to the historical terminology, but variation is substantial.