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Kaitamaki v R

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


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.

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.)

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Answering problem questions in the University of London LLB programme requires a clear understanding of legal principles, good analytical skills and the ability to apply the law to a given set of facts. Here are some tips to help you answer problem questions effectively:

  1. Read the question carefully: Make sure you understand what the question is asking before you begin writing.
  2. Identify the legal issues: Identify the legal issues raised by the facts and the relevant laws that apply to those issues.
  3. Analyze the facts: Analyze the facts presented in the question, focusing on the details that are relevant to the legal issues.
  4. Apply the law: Apply the relevant laws to the facts, making sure to consider all relevant legal principles and cases.
  5. Structure your answer: Use a clear and well-structured approach, starting with an introduction that outlines the main legal issues, followed by a discussion of the relevant laws and a conclusion that summarizes your analysis and sets out your conclusion.
  6. Use relevant cases and statutes: Cite relevant cases and statutes to support your analysis and help illustrate the legal principles you are discussing.
  7. Be concise: Be concise and to the point, focusing on the key issues and avoiding unnecessary detail.
  8. Proofread: Proofread your answer carefully to make sure it is error-free and clear.
  9. Time management: Make sure you manage your time effectively, leaving enough time to review your answer and make any necessary corrections.

By following these tips, you should be able to answer problem questions in the University of London LLB programme effectively and with confidence. Good luck!

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