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The Unintentional Rapist

I. Bennett Capers

Brooklyn Law School

Washington University Law Review, Vol. 87, 2010
Hofstra Univ. Legal Studies Research Paper No. 09-25

Rape law is replete with troubling cases. Using as a case in point McQuirter v. State, in which a black man was convicted of attempt to commit assault with intent to rape one Mrs. Ted Allen, a white woman, this Article argues that much of this trouble is traceable not to the black letter law of rape, but to what this Article terms the white letter law of rape. Though rarely made explicit, this white letter law of rape is decidedly color-coded, and promulgates the sexualization of race and the racialization of rape. Even more problematic, the reforms advocated by feminist scholars to eliminate sexism in rape law have in fact entrenched racism in rape law. This Article then asks what it means to be an unintentional rapist, i.e., to be wrongly perceived as a rapist, especially when that perception is informed by race. Is it possible to recast the unintentional rapists not as a suspect or defendant, but as a crime victim? Put differently, can we reframe McQuirter v. State into a hypothetical State v. Allen? Should we? The answers to these questions have profound implications for reforming the law of rape. They also have profound implications for the law of not rape.

Number of Pages in PDF File: 56

Keywords: Rape, criminal law, gender, race

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Date posted: December 5, 2009 ; Last revised: March 11, 2010

Suggested Citation

Capers, I. Bennett, The Unintentional Rapist. Washington University Law Review, Vol. 87, 2010; Hofstra Univ. Legal Studies Research Paper No. 09-25. Available at SSRN: https://ssrn.com/abstract=1517984

Contact Information

I. Bennett Capers (Contact Author)
Brooklyn Law School ( email )
250 Joralemon Street
Brooklyn, NY 11201
United States
HOME PAGE: http://www.brooklaw.edu/faculty/directory/facultymember/biography.aspx?id=bennett.capers

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