Difference Between Completed Crime of Sexual Assault and Attempted Sexual Assault
In Guertin v. State, 854 P.2d 1130, 1133 (Alaska Ct. App. 1993), the Alaska court stated:
Guertin complains that the jury instructions were confusing because they asked the jury to apply two different culpable mental states to "sexual contact".
Guertin points out that, when describing the completed crime of second-degree sexual assault, the instructions refer to "sexual contact" as the proscribed conduct (to which the culpable mental state of "knowingly" applies), but when describing attempted second-degree sexual assault, the instructions refer to "sexual contact" as the result (to which the culpable mental state of "intentionally" applies).
This is not a confusion; it is correct.
The completed crime of second-degree sexual assault requires proof of conduct (sexual contact) and a circumstance (the victim's lack of consent).
Because sexual contact is the "conduct" element of the completed crime, the culpable mental state that applies to sexual contact is "knowingly".
On the other hand, attempted second-degree sexual assault is an inchoate crime: by definition, the prohibited non-consensual sexual contact has not occurred, and the issue is whether the defendant's conduct constituted a substantial step toward accomplishing the goal of sexual contact. AS 11.31.100(a).
In the context of an attempt, sexual contact is a "result"--the conscious goal of a defendant's actions--and the applicable culpable mental state is "intentionally".
See also United States v. Roa, 12 M.J. 210, 213 & n.3 (C.M.A. 1982) ("A general intent will suffice to prove rape; but a specific intent to rape is requisite to establish guilt 18 of attempt to rape or assault with intent to rape.
Thus, intoxication may relieve of culpability for an attempt to commit an offense such as rape or assault with intent to commit rape when it would not be a defense in a prosecution for commission of the principle offense.").