Published: Wed, 07 Mar 2018
R v Cooper; R v Schaub  Crim LR 531
Whether penetration is an ongoing act for the purposes of rape under Sexual Offences Act 2003, s 1
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.
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.
Following Kaitamaki v The Queen  AC 147 penetration is an ongoing act and therefore, if a man continues to have sexual intercourse after consent is withdrawn he will be committing rape.
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