R v Elbekkay [1995] Crim LR 163 Court of Appeal

The appellant had been out drinking with a couple and they retired to the couple's flat. They continued drinking at the flat and the complainant went to bed leaving the appellant and her boyfriend in the living room. The boyfriend fell asleep on the sofa. The appellant climbed into bed with the complainant. She assumed it was her boyfriend and said, "I love you". He then started to have intercourse with her. After about 20 seconds she realised it was not her boyfriend. She punched him and cut him with a knife and then woke her boyfriend. The appellant was found guilty of rape and appealed contending she had consented to sexual intercourse.

Held:

Appeal dismissed. Conviction upheld. The rule relating to impersonation of a husband applied equally to impersonation of a boyfriend.

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