Legal Case Summary
Kaitamaki v The Queen [1985] AC 147
Whether penetration is an ongoing act for the purposes of rape under Sexual Offences Act 2003, s 1
Facts
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.
Issue
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.
Decision / Outcome
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.)
Updated 19 March 2026
This case summary remains legally accurate. Kaitamaki v The Queen [1985] AC 147 is a Privy Council decision from New Zealand that established the principle that penetration is a continuing act for the purposes of rape. That principle has been expressly incorporated into English law by the Sexual Offences Act 2003: section 79(2) provides that ‘penetration is a continuing act from entry to withdrawal.’ This statutory provision directly codifies the Kaitamaki principle and confirms the case’s continued relevance to the law of England and Wales. The article correctly identifies the applicable provisions of the Sexual Offences Act 2003. No subsequent case law or statutory amendment has undermined the legal position described. The article is broadly accurate and up to date, though readers should note that section 79(2) of the 2003 Act now puts the Kaitamaki principle on an explicit statutory footing, meaning the case is now most significant as the historical authority underlying that provision rather than as a freestanding common law rule.
