The Unintentional Rapist

56 Pages Posted: 5 Dec 2009 Last revised: 11 Mar 2010


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.

Keywords: Rape, criminal law, gender, race

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:

I. Bennett Capers (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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