Kaitamaki v The Queen  AC 147
Whether penetration is an ongoing act for the purposes of rape under Sexual Offences Act 2003, s 1
The defendant was convicted of breaking into the victim’s flat and raping her twice. There was no dispute that sexual intercourse had taken place on two occasions, but the defendant contended that the victim had consented or that he had a reasonable belief that she was consenting. With regards to the second act of sexual intercourse, the defendant stated that whilst he believed that the victim was consenting at the time of penetration, he became aware that she subsequently was not consenting. The defendant did not however cease the intercourse.
The court was asked to define the term penetration for the purposes of Sexual Offences Act 2003. In particular, whether the term applied only to the initial penetrating act.
It was held that whilst sexual intercourse occurs at the point of penetration, it was also a continuing act that ceases only at the point of withdrawal. On this basis, because the Sexual Offences Act 2003, s 1(1)(a) defines rape as requiring the intentional penetration of the victim’s vagina, anus or mouth with the defendant’s penis and s 1(1)(b) and (c) state that the offence will be satisfied if the victim does not consent to the penetration and the defendant does not reasonably believe that the victim consents, a defendant will be liable if they become aware during sexual intercourse that the victim no longer consents and fail to withdraw at that point. Penetration itself is ongoing throughout the act of sexual intercourse. The defendant’s appeal was dismissed and his conviction for rape upheld.
(Note: the judgment refers to the New Zealand Crimes Act 1961 under which the definition of rape is worded slightly differently. However, the wording is sufficiently similar for the case to have application to the 2003 Act.)