R v Cooper; R v Schaub [1994] Crim LR 531
Whether penetration is an ongoing act for the purposes of rape under Sexual Offences Act 2003, s 1
Facts
The defendants met the victim at a bar and asked her to show them where the nightclubs were in the area. The victim ultimately went to one of the nightclubs with the two men. The victim stated that she had asked another woman to accompany her in a car with the defendants, but this woman’s account differed significantly from the victims. In any event, the victim asked the two men to take her home. The victim stated that once in the back of the car, she fell asleep and awoke to find that Schaub had got into the back of the car and was sexually assaulting her. He then put his penis in her vagina. At this time Cooper put his penis in the victim’s mouth. The victim then bit Cooper’s penis. This resulted in the defendants changing positions and Cooper putting his penis in the victim’s vagina whilst Schaub put his in her mouth under threat that she would suffer is she bit it. The two defendants eventually ejaculated and dropped the defendant off at a place of her choosing.
Issues
There were some initial issues regarding the judges summing up of police interviews and the use of screens which were pertinent only to this judgment. The primary issue was whether penetration under Sexual Offences Act 2003, s 1 was complete after the initial act so that subsequent lack of consent did not render the defendant guilty of rape.
Decision/Outcome
Following Kaitamaki v The Queen [1985] AC 147 penetration is an ongoing act and therefore, if a man continues to have sexual intercourse after consent is withdrawn he will be committing rape.
Updated 20 March 2026
This article is broadly accurate in its core legal proposition. The principle that penetration is a continuing act, established in Kaitamaki v The Queen [1985] AC 147 and applied in R v Cooper; R v Schaub, is now expressly codified in the Sexual Offences Act 2003, s 79(2), which provides that ‘penetration is a continuing act from entry to withdrawal.’ This statutory provision confirms and reinforces the case law discussed in the article.
One point of caution: the article states the case citation as [1994] Crim LR 531, yet the Sexual Offences Act 2003 did not exist at the time of the decision. The case was decided under the earlier law (Sexual Offences Act 1956 and common law principles on rape). The article’s framing of the issue under the Sexual Offences Act 2003 is therefore somewhat anachronistic, as that Act was not in force until 1 May 2004. However, the legal principle remains equally applicable under the 2003 Act, and the article’s substantive conclusion is correct as a statement of current law. Readers should be aware that when the case was actually decided, the statutory framework in force was different from that cited in the article.
