People who are stupid, rather than wicked, are not the concern of the criminal law. Similarly, those who mean well should be excused. In the hierarchy of wrongdoing, such total indifference to the consent of a person to have sexual intercourse is plainly reckless, at least in our society today. Such a law would simply reaffirm the view that our criminal law, at crucial moments, fails to provide principled protection to the victims of unwanted sexual intercourse, most of whom are women. Our law is not unprincipled or inadequate in this regard.
Attempts are crimes because of the criminal intent of the actor.
A man who intends to kill V, and who picks up a gun believing it to be loaded, and who points it at V and pulls the trigger is guilty of an attempt to murder V, even if it transpires that the gun was not loaded. He is punishable for an attempt, not because of any harm that he has actually done by his conduct, but because of his evil mind accompanied by acts manifesting that intent. The criminality comes from the conduct intended to be done. That conduct intended must amount to an actual and not an imagined crime, but if it does, then it matters not that the gun is in fact unloaded, or the police intervene, or the victim is too far away, or the girl is in fact over sixteen, or the pocket is empty, or the safe is too strong, or the goods are not cannabis. A Crim R 254 at 261 Discuss.