Article Title

The Unintentional Rapist

Publication Title

Washington University Law Review


When I read and re-read McQuirter, I find that the case raises more questions than it answers. McQuirter raises questions about the law of rape. But it also raises questions about the sexualization of race, the racialization of rape, and ultimately the specter of not rape.

This Article proceeds as follows. Part I begins with an overview of the black letter law of rape, from its common law foundation through its recent reforms. The point of this overview is not to be exhaustive or to provide a hornbook on the law of rape. Indeed, there are aspects of rape law — such as rape by fraud in the inducement, statutory rape, and the change in evidentiary rules ushered in by rape shield laws — that I put to the side almost entirely. Rather, the point of the overview is to show that any understanding of the development of the black letter law of rape in this country is incomplete without an understanding of what I have termed the ―white letter law of rape. Though rarely made explicit, this white letter law of rape often governs the application of the black letter law, determining its presumptions and reallocating its burdens of proof and persuasion. But it is more than this. It also informs which complainants are believed, which suspects are prosecuted and convicted, and the severity of their punishment. Understanding this white letter law of rape is a first step in arguing for a change in the law of rape. And it is the first step in arguing for a change in the law of not rape.

Part II focuses on the issue of mens rea in rape cases, and argues that here, too, the sexualization of race and the racialization of rape matters. There is something akin to presumption of criminal intent in rape cases involving black male defendants and white female complainants. Equally troubling, when it comes to the defense of reasonable belief in the presence of consent, there seems to be a presumption of un-reasonability.

Part III returns to the case of McQuirter v. State, and questions the reforms pressed by feminist legal scholars. Finally, Part IV attempts to answer the question that, more than any other, motivates this Article: What if McQuirter was an unintentional rapist? By this I mean, what happens when we: (i) assume that McQuirter did not have the intent to rape Mrs.Ted Allen; (ii) assume that Mrs. Ted Allen nonetheless perceived McQuirter to have the intent to rape; and (iii) reorient ourselves to look at the case from McQuirter‘s perspective? Is it possible to recast McQuirter not as the defendant, but as a crime victim, with Mrs. Ted Allen cast as the perpetrator? Can we reframe McQuirter v. State into a hypothetical State v. Allen? Should we?