R v Elbekkay [1995] Crim LP 163

RAPE – CONSENT – DECEPTION - IMPERSONATION OF BOYFRIEND

Facts

The appellant had been out for the evening drinking with the victim and her boyfriend.  They returned to the victim’s flat and the victim retired to bed whilst the appellant and the victim’s boyfriend continued to drink. Later that evening the appellant climbed into the victim’s bed. Believing the appellant to be her boyfriend the victim said, “I love you”. The appellant then began to have intercourse with the victim. Soon after the victim realised her error and fought the appellant off, cutting him with a knife.  The appellant was convicted of rape and appealed on the basis that the victim had consented to intercourse.

Issue

Under s.4 of the Criminal Law Amendment Act 1885 there existed a legal presumption that a victim who is induced to agree to intercourse by a person impersonating her husband does not consent to the act, as the fraud is sufficiently fundamental to negative any purported consent on the part of the victim. The question arose whether this presumption was limited to spouses or extended to unmarried couples.

Held

The statutory presumption contained in s.4 was limited to husbands because it was designed to resolve a particular confusion. It was therefore not implicit that only the impersonation of a husband would be rape. In impersonating the boyfriend of the victim, with whom she had been in a relationship for 18 months, the appellant had committed a rape.

It is worth noting that this position is now codified under s.76(2)(b) of the Sexual Offences Act 2003.