Kaitamaki v The Queen
Privy Council (New Zealand)
Citations:  AC 147;  3 WLR 137;  2 All ER 435.
The defendant initiated sex with the complainant. When sex began, either the woman consented or the defendant believed that she consented. However, during sex he realised that she was not consenting or was no longer consenting, but did not stop.
The defendant was charged with rape. The trial judge directed the jury that if the defendant failed to stop when he realised she was not consenting, his actions became rape even if the woman initially consented. The jury convicted. The defendant appealed, arguing that the judge misdirected the jury.
- Can consent to a sex act be withdrawn after the act has begun?
The Privy Council upheld the conviction. Sexual intercourse is a continuing act which only ends with withdrawal. If the complainant stops consenting during the act, and the man realised this, that was rape. The judge had therefore correctly directed the jury.
This Case is Authority For…
When this case was decided, a defendant only committed rape if he subjectively knew his victim was not consenting. In the modern era, a defendant commits rape if he knows the victim is not consenting or if he lacks a reasonable belief in consent.
If a complainant withdraws consent during a sex act, the act becomes non-consensual. If the defendant is aware that consent has been withdrawn (or if his belief in consent becomes unreasonable), then he commits a sex offence.