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.
Issues
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.
Decision/Outcome
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.
Updated 20 March 2026
This article accurately summarises the facts and outcome of R v Elbekkay [1995] Crim LR 163. The case remains good law for the historical common law proposition it established. As the article correctly notes, the relevant principle has since been placed on a statutory footing. Section 76(2)(b) of the Sexual Offences Act 2003 now provides a conclusive presumption that the complainant did not consent where the defendant intentionally induced the complainant to consent by impersonating a person known personally to the complainant. This provision supersedes the old s.4 of the Criminal Law Amendment Act 1885, which was repealed. The 2003 Act framework therefore now governs this area, and Elbekkay is primarily of historical and doctrinal interest in explaining the development leading to the current statutory position. Students should note that s.76 conclusive presumptions are interpreted narrowly by the courts: see R v Jheeta [2007] EWCA Crim 1699, which confirmed that s.76 applies only in closely defined circumstances and that consent questions outside those circumstances fall to be determined under the s.74 general definition. The article contains no material legal inaccuracies.
