Law of Rape

Section 127 of the New Zealand Crimes Act 1961 provides that sexual intercourse is complete upon penetration. However, “penetration” itself is not defined. Accordingly, the English law definition still applies, according to which penetration will be complete if any part of the man’s penis is “within the labia or pudendum, no matter how little”. 

In 1994, the replacement of “vagina” by “genitalia” in section 128(2) and (5) now means that any penetration of the vulva will suffice for the crime of rape and sexual violation by unlawful sexual connection.  It is submitted that the 1994 amendment has therefore changed the law significantly, and future offenders should not suppose that leniency will be extended to them on the basis that the alleged violation involved only “slight” non-vaginal, penetration that might previously have been treated simply as an indecent assault. Whatever may have been the legislative intent regarding non-vaginal penetration prior to 1994, it now clear that any non-consensual invasion of the genitalia, including of the vagina and the vulva, will constitute unlawful sexual connection.  Thus the previously vital distinction between vaginal and non-vaginal penetration for the purposes of intrusion by “another body. . .or objects”  is no longer valid and will not support a defence to a charge of sexual violation.

It is noted that Australia and New Zealand have now broadened the meaning of rape so that the scope covers the introduction of the penis of a person into the anus or mouth of another person as well as penile penetration of the vagina or genitalia. The insertion of foreign objects (digital penetration) into vagina, genitalia and anus is also included.

It is also observed that some statutes, particularly those which have substantially broadened the definition and scope of sexual intercourse, have also, as a corollary, abolished the word “rape”.  For instance, Canada and New South Wales have replaced it with the term “sexual assault”, Michigan with “criminal sexual conduct” and New Zealand with “sexual violation”.

In its Report on Sexual Offences, the Canadian Law Reform Commission stated:

“The Commission has come to the conclusion that the very use of the word “rape” attaches a profound moral stigma to the victims and expresses an essentially irrational folklore about them.” “ ‘Sexual assault’ is a more neutral term, which involves far less public stigma and about which victims might be less likely to feel shame and degradation.”

Similarly, explaining the use of the term sexual assault in the New South Wales legislation, Woods states:

“It was widely believed that the term “rape” involved an unacceptable stigma for victims.”

It is submitted that this is not to say that sexual assault carries no stigma, but the term is vague and the stigma arguably less. Moreover, the word rape conjures up certain stereotypical images: it is associated with psychopaths, extremes of violence, strangers and innocent young victims. Juries may therefore be reluctant to impose the stigma of it on an offender save in the most extreme cases. They may consider that many forms of non-consensual sexual intercourse are not so grave as to be labeled rape.

Thus, it is suggested that in order to distance the law from the many preconceived cultural notions about rape, rapists and rape victims, a new terminology may be thought to be desirable. On the other hand, it is opined that although the strong emotional reaction which the word “rape” evokes probably does stigmatise the victim, it also has the effect of stigmatising the offender as well. It is possible, therefore, that a conviction for rape attaches a more negative label to the offender than would a conviction for sexual assault, and that there would therefore be some advantages in retaining the term, even if its definition and scope were extended.

It is commented that rape should not refer only to penile penetration of the vagina only. Rape represents an expression of power and violence to terrorise and humiliate women. And forcible coitus is not only weapon used to assault women. The definition and scope of rape should be widened to include any forcible penetration of the vagina or anus by any means. It is of the opinion that by being forcible penetrated by a foreign object is a violation as forced being into unwanted sexual intercourse. Likewise forced sodomy that often accompanies forced intercourse should be included in the definition of rape. It is submitted that by widening the definition and scope of rape it is in line with an informed understanding of the reliability of rape as a medium of humiliation and degradation of victim through sexual means.

The Completion of Sexual Intercourse.

It is to be noted that although sexual intercourse is deemed complete upon penetration, it is a continuing act which continues so long as penetration is maintained and ends only with withdrawal. It would appear from the Privy Council’s decision in Kaitamaki v. R. that “complete” is used in section 44 of the Sexual Offences Act (UK) 1956 in the sense of having come into existence and not in the sense of being at an end. It follows that if the accused becomes aware that the complainant is not consenting after penetration but before withdrawal, and he continues the act of intercourse, he commits the offence of rape. The English courts have now approved and adopted the Kaitamaki principle.

For instance, in R. v. Brookes, the Court of Appeal upheld a sentence for rape where the appellant had pleaded guilty, having admitted that he became aware the complainant was not consenting after sexual intercourse had commenced.

The principle was given fuller consideration by the Court of Appeal in R. v. Cooper and Schaub, it was emphasised that penetration is a continuing act and that although the initial penetration may have been with consent, if the woman withdraws that consent and the man continues to penetrate her then he commits rape.

In response to a question from the jury, the trial judge had ruled:

“If after vaginal penetration a man becomes aware that the woman is no longer consenting, he is guilty of rape if he nonetheless continues to have intercourse”.

The practical question that arises is how long would it be necessary for the accused to take to reach orgasm before the withdrawal was complete? Indeed it is a salutary thought that a man is unable to restrain himself at such a moment commits the very serious offence of rape. Notwithstanding these considerations, penetration in this context must be a continuing act.

It is admitted that it is now clear that rape is a continuing act, but it has yet to be determined exactly how immediate, upon realisation, withdrawal has to be if the man is to be acquitted. Whilst this is not likely to prove a frequent problem for the courts, it does, nevertheless, raise some interesting and serious issues. The requirement that the man should withdraw when he becomes aware of the removal of consent, does not, as yet, clarify whether that withdrawal should be instantaneous, immediate, or within some reasonable time.

However, in the Australian case of R. v. Salmon, the Supreme Court of South Australia held that the offence of carnal knowledge to be deemed complete upon proof of penetration for the purpose of the Criminal Law Consolidation Act 1935. Their Honours rejected the argument that where consent was withdrawn after penetration, the crime of rape was made out.  The court said:

“In the instant case we think that in logic, common sense and ordinary experience it would be unreal to regard that portion of a single act of intercourse which takes place after penetration as a separate transaction from the part which constituted the initial penetration. Does section 73 compel the court to draw an artificial line between penetration and the aftermath of penetration so as to make them in the eyes of the law two different transactions? We think it does not.”

Similarly, in Richardson v. The Queen, the Supreme Court of Tasmania held that the Criminal Code definition of carnal knowledge as “the penetration to any the least degree” did not enable the conclusion to be drawn that the crime of rape included both initial and continuing penetration. In the course of the judgment their Honours pointed out that the opposite construction would give rise to the crime of rape being committed by the omission to withdraw, an entirely unsatisfactory conclusion. 

Their Honours relied upon the generally understood meaning of the word penetration as being “to make or find its way into”. Their Honours drew attention to the extremely unsatisfactory character of any other result by illustrating the case of a thirty-year-old woman who seduces a youth of seventeen years into having intercourse. No precautions against conception are taken. After the act continued for some time, fearing the risk of conception, she makes it plain that her consent is withdrawn but the youth, his passions aroused, continues with the act. Their Honours described the contention that on those facts the crime of rape had been committed as quite unacceptable.

On the other hand, in R. v. Murphy, the appellant was charged with rape and unlawful sexual intercourse. He pleaded guilty to unlawful sexual intercourse and was convicted of rape. On appeal, it was argued that the judge ought to have directed the jury on an alternative verdict of indecent assault, as a possible version of the facts was that the complainant consented to the sexual penetration but thereafter withdrew her consent.

The Supreme Court held that it would not have been proper to direct the jury on an alternative verdict of indecent assault that was a lesser offence to the charge of unlawful sexual intercourse to which the appellant had pleaded guilty.

It is noted that the current legal position in Australia is that the continuation of sexual intercourse after penetration falls within the physical act required for rape in all jurisdictions. Where consent is withdrawn during intercourse or the absence of consent becomes apparent after penetration, the issue may arise as to whether the continuation of the act after initial penetration satisfies the requirement of sexual intercourse or carnal knowledge. The issue may also arise in the context of aiding and abetting rape. In the Australian Capital Territory, New South Wales, the Northern Territory, Tasmania and Western Australia the definition of the physical act expressly includes continuation of sexual intercourse. In Victoria the same effect is achieved by expressly providing that the crime of rape is committed if, after penetration, there is no withdrawal from a person who is not consenting. Although in Queensland and South Australia the issue is not expressly covered by statutory definition, but the weight of authority supports treating the continuation of sexual intercourse as satisfying the physical act required for a charge of rape. This was the interpretation of the definition of sexual intercourse in the Criminal Law Consolidation Act 1935 (SA). 

Similarly in New Zealand, the word “complete upon penetration” in section 127 of the Crimes Act 1961, means that the act has come into existence rather than has come to an end, and that sexual intercourse is a continuing act. This means that intercourse innocent at its beginning may become criminal if continued after consent is withdrawn, or if the actor continues after ceasing to reasonably believe in consent; and another may become a secondary party by participating after its inception but during its continuance. In the definition of sexual violation, it is clearly provided that “sexual connection” means, inter alia, the continuation of sexual connection.

In the New Zealand case of R. v. Kaitamaki, the appellant was charged with one offence of rape.  By the old section 128(1) of the Crimes Act 1961 rape was defined as ‘the act of a male person  having sexual intercourse with a woman  or girl without her consent’ and by section 127 of that Act it was provided that “sexual intercourse is complete upon penetration.” The Crown’s case was that the appellant had broken into a dwelling house and then twice raped a young woman who was the occupier. It was not disputed that intercourse took place twice, but the defence was that the woman had consented or alternatively that the appellant had honestly believed that she was consenting.

On a charge of rape, the appellant gave evidence that after he had penetrated the woman for the second time; he became aware that she was not consenting but that he did desist from intercourse. The trial judge directed the jury that, if part way through an act of intercourse, a man who had previously thought that the woman was willing, realises that she is unwilling but continues with the act of intercourse, it then become rape. The jury convicted the appellant and he appealed against conviction on the ground that this was misdirection.

The appellant appealed to the Court of Appeal, contending that for the purposes of the 1961 Act, a man who penetrated a woman with her consent could not become guilty of rape by continuing intercourse after a stage when he realised the woman was no longer consenting, because rape was penetration without consent and, once penetration was complete, the act of rape was concluded.

On appeal, Richmond P. and Richard J. held that the direction was correct. Their Honours recognised the unsatisfactory results that flowed from such a construction. Richmond P. said:

“We have in mind, for example, a woman suddenly wishing a man to desist at a late stage of intercourse or the failure of a man to fulfill a promise to desist before reaching a climax”.

Their Honours, however, were swayed by the fact that if their construction were not to be adopted, it would lead to the unsatisfactory result that “a girl who had been seduced into permitting a slight degree of penetration could not cry rape if she were then fully and by violence forced against her obvious wishes and subjected to a complete act of intercourse.”

Woodhouse J. in a powerful and persuasive dissent stated:

“I cannot understand how any woman could reasonably complain that she had been violated in the gross sense of being raped if she had agreed that her partner could enter her. It may be that after a consensual act of intercourse had commenced, physical discomfort or pain could induce a change of mind by the woman concerned or there could be sudden repentance on the part of a young girl that she had yielded to seduction. But surely nothing of this kind could provide the setting for rape whatever other offences might then seem to have been committed. And, certainly whatever may be the moral implications, seduction ought never to be confused with rape.”

His Honour also pointed out that as a matter of statutory construction, once a woman had consented to penetration, what happened thereafter constituting the same act of intercourse, could not be said to be within the same terms of section 128,  “the act of sexual intercourse. . .without her consent”. His Honour said:

“The initiation of intercourse by penetration done with her consent is, in my opinion physically, or legally in terms of the statute itself, quite incapable of separation from the rest of the same uninterrupted occasion of intercourse until withdrawal.”

The appellant appealed to the Privy Council who in dismissing the appeal held that the purpose of section 127 of the Crimes Act 1961 is that “sexual intercourse is complete upon penetration” is to remove any doubts as to the minimum conduct on the part of an accused which the prosecution will have to establish in order to prove that he had sexual intercourse with the woman concerned. “Complete” is used in the sense of having come into existence rather than in the sense of being at an end. Sexual intercourse is a continuing act that only end with withdrawal. Their Lordship pointed out that the word appearing in section 127 is “complete” not “completed” and, like the Court of Criminal Appeal, indicated that their conclusion rested upon the construction of the statutory provisions.    

It is commented that this would appear also to be the law in England at present, as there are clear parallels between section 127 of the New Zealand Crimes Act 1961 and section 44 of the Sexual Offences Act 1956 and between section 128(1) of the 1961 Act and section 1 of the Sexual Offences (Amendment) Act 1976. 

However, the above decision has been criticised by Professor J.C. Smith who commented that a better view would be that rape is committed when a man penetrates a woman knowing that she does not consent or being reckless whether she consents and that the offence continues until he withdraws. That is, rape is not an instantaneous act but penetration without consent is an essential part of it. It was also commented that penetration is an essential part of the actus reus of rape and that this must be accompanied by mens rea. The effect of the decision is that rape by omission is now a possibility.

It is further commented that in the light of R. v. Kaitamaki, an even “harder case” might be that of a prostitute’s client who, prior to penetration, has agreed to pay her stated fee for sexual intercourse. After penetration, she decides to “play him along” for additional payment by threatening to require him to withdraw if he will not assent to the further demand. He refuses and she straightway communicates her unwillingness to continue intercourse. He continues. The obverse of the coin commands the courts’ most serious attention too. Similarly, there is medical evidence of males who taken abnormally long time to achieve orgasm and of others who, with or without removal of the penis from the vagina, are capable of multiple orgasm. In all these instances, the female partners may have legitimate cause for complainant over pain and other distress threatened or suffered. However, as the effect of the legal decision is that rape by omission is currently a possibility, it is the man who will be found guilty.

For instance in R. v. Everson, the Court of Appeal approved a direction that if a man who had previously believed the woman was willing to have intercourse, realised she was no longer willing, and continued with the act of sexual intercourse, that then the man committed rape.

It is submitted the principle laid down in R. v. Kaitamaki, implicates that any offence involving “sexual penetration” will continue until the accused desists from the activity which constitutes the actus reus of the offence. It will not be a defence to say that the victim consented to the initial act of sexual intercourse if consent is withdrawn while the connection persists. It is thought that this ruling might create hardship, particularly in situations involving sexually inexperienced persons who, in situations of sexual connection falling short of actual intercourse, do not desist immediately when consent to continuing intimacy is withdrawn. While the courts are mindful of the difficulties created by such cases, they will nonetheless be concerned to uphold the intent of the legislation, which is to protect people from sexual exploitation and sexual abuse when they have either not consented to sexual activity or withdrawn consent that earlier was perhaps given. The purpose of the law is to uphold the right to personal autonomy in matters of sexual intimacy, and to correct those who fail to respect that right in others.

It is concluded that the first element of actus reus in rape consists of sexual penetration of a woman's genitalia by a man's penis without her consent.  As has been mentioned earlier, at present, the physical element in the offence of rape has been considerably broadened in relation to the common law conception and, accordingly, this offence is not confined to penetration of a woman by a man. The offence is complete once the slightest penetration takes place. There need not be an emission. Given that the physical element in the common law offence is described in terms of "sexual penetration", and not “sexual intercourse”, it is unclear as to whether the offence is concluded once penetration takes place. Some authority holds that it is both complete and concluded at the moment of penetration, that is, it is not a continuing offence. However, other authority holds that while it is committed the moment penetration takes place, and it is not concluded until the penis is withdrawn, viz., rape continues for the duration of the non-consensual intercourse.

Therefore, if rape is complete and concluded once penetration takes place; it means that a man who penetrates a woman without mens rea, and only subsequently reliase that she is not or might not be consenting (an unlikely situation), does not incur liability, for mens rea comes into existence only after the actus reus is concluded. It also means that the man who penetrates with consent does not become liable once the woman withdraws her consent, notwithstanding that he knows of this development and refuses nevertheless to withdraw. On the other hand, if the view is taken that rape is a continuing act, it would mean, technically speaking, that the accused incurred liability instantly upon learning of the complainant's non-consent, or withdrawal of consent, during the currency of intercourse.

It is admitted that the scope of the law of rape is not particularly concerned with the protection of virginity but it also protects the modesty and dignity of a person (male and female). It is not important to determine whether the victim was a man or a woman or a person who had the physical appearance or physical attributes of a man or a woman, but the relevant matter should be whether the crime has been committed.

---