Actus Reus: ‘Penetration’
‘Penetration’ is defined in SOA 2003, section 7(9) as a ‘continuing act from entry to withdrawal’. This infers that rape can occur when sexual intercourse is initiated between two consenting adults and later, the consent is withdrawn during the act.
This was demonstrated in the case Kaitamaki , where sexual intercourse took place on two occasions between the defendant and the complainant. During the second intercourse, the defendant became aware that the complainant did not consent to it, but did not stop the act. The court held that the conditions of rape were met since the victim did not consent to the penetration and the defendant did not have a reasonable belief that she consented. The defendant is also liable when they become aware during sexual intercourse that the victim no longer consents and fails to withdraw at that point. Therefore, the initial consent becomes irrelevant if the defendant has a reasonable belief that the complainant withdrew consent and the act was still taking place.