R v Elbekkay [1994] EWCA Crim 1 concerned a woman who agreed to intercourse believing that the man was her boyfriend, when he was someone else. The Court of Appeal upheld the rape conviction: the relevant absence of consent was not confined to cases involving impersonation of a husband.
Facts
The complainant, her boyfriend and Elbekkay spent an evening drinking and returned to the couple’s flat. Her boyfriend put her to bed, arranged for Elbekkay to sleep in the sitting room, and then fell asleep there himself.
The complainant awoke to someone touching her in bed. Believing it was her boyfriend, she did not initially object to intercourse. When she realised it was Elbekkay, she resisted and called for help.
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Elbekkay told the police that she had knowingly consented to intercourse with him and had objected only afterwards. The jury rejected that account. He was convicted in February 1994 and sentenced to five years’ imprisonment.
The legal argument
The appeal against conviction raised a point of law: whether the complainant’s initial agreement, given under a mistake about the man’s identity, meant that the absence-of-consent element of rape had not been established.
Elbekkay relied on nineteenth-century cases which had treated consent obtained by impersonating a husband as sufficient to prevent a rape conviction. Parliament had subsequently addressed impersonation of a husband expressly, first in the Criminal Law Amendment Act 1885 and then in section 1(2) of the Sexual Offences Act 1956.
He argued that those provisions did not cover impersonation of an unmarried partner and that any extension should be made by Parliament. He also relied on the separate offence of procuring intercourse by false representations.
The court’s reasoning
The Court of Appeal rejected the distinction between a husband and a long-term partner. It did not accept that Parliament had deliberately intended to criminalise impersonation of the former as rape while excluding the latter.
The court considered the older authorities alongside R v Dee, which had treated the woman’s consent as consent to intercourse with the particular man she believed was her husband. That approach recognised the identity of the person as central to what she had agreed to.
The court also relied on the definition introduced by the Sexual Offences (Amendment) Act 1976. For the absence-of-consent element, the question was whether the woman consented to the intercourse at the time. On the facts accepted by the jury, she had not consented to intercourse with Elbekkay.
There was no justification for giving a woman who lived with her partner less protection on this point than a married woman. The court found no authority or statute requiring that result and recognised that the common law could develop with changing social circumstances.
Decision and scope
The appeal was dismissed. The court later declined to certify a point of law of general public importance for a further appeal.
The decision concerned consent where the complainant mistook the defendant for a different person. It did not establish that every form of deception made intercourse rape. The appeal also did not remove the need to prove the defendant’s required mental state: the discussion after judgment expressly distinguished that issue from the absence of consent argued on this appeal.
Report citation: [1995] Crim LR 163.
Source: R v Elbekkay, Court of Appeal (Criminal Division), 12 September 1994.
