I do agree it does make a difference in terms of fair discussion of what he is accused of. So if we are going to be discussing it in legal terms yes the distinction should be made.
I disagree that it should absolve him from being criticised for rapist like behaviour and also being branded as one. If someone speaks in the way he did I would 100% assume his full intent was to perform the act and therefore while their is a legal distinction between attempt and actually carrying out of an act trying to rape someone or threatening it for me makes you morally as corrupt and undeserving of sympathy, respect and such like and shows you to be a real threat worthy of branding with an unpleasant societal label.
So while there is no smoking gun to evidence it there is enough in the public domain to enable people to have that opinion of him. Hand on heart would anyone who heard that from a colleague at work be comfortable around them again with no other context being explained to you? Would you think the worst or be naturally inclined to give them another chance?
The only natural reaction to hearing the audio and seeing the pics is utter disgust.
But since initially hearing the audio in Jan '22, a lot of info has come out that casts doubt about what exactly the content released on Instagram actually shows so my feeling about that audio today is not the same as when I first heard it.
The new info (back with her, CPS case closed, club find not guilty, her family support) certainly doesn't absolve him so I can understand some criticism, but given the big unknowns I don't think it's correct to brand someone as a rapist because that's obviously one of the worst tags anyone could have and you should be absolutely sure before using it.