The unintentional rapist.

• Author: Capers, I. Bennett

TABLE OF CONTENTS INTRODUCTION I. THE BLACK LETTER/WHITE LETTER LAW OF RAPE A. The Black Letter Law of Rape B. The Black Letter/White Letter Law of Rape 1. Explicit Laws 2. Indirect Laws 3. White Letter Laws and the Resistance Requirement 4. White Letter Laws and Punishment C. Consequences II. RACE AND MENS REA, OR RACE IPSA LOQUITUR A. Rape and Mens Rea: An Overview B. Race and Mens Rea: Presumptive Intent and Presumptive Non-Consent C. Race and Mens Rea: Credibility Determinations III. MCQUIRTER V. STATE REVISITED A. Revisiting the Case B. Rethinking Feminist Reforms IV. RAPE HARMS, AND IMAGINING STATE V. ALLEN CONCLUSION I am a rapist. Not by choice. But when I look in the mirror and see what others see, I know there's no hiding it. I am a rapist.

No, I have never followed a woman to her car at night, pulled a knife on her, and forced her to put out or be killed. Nor have I tackled an early morning jogger in the park, putting one hand over her mouth before she could scream and yanking down her running shorts with my other hand. In terms of crawling through windows in apartment complexes where single women live, that hasn't been my thing either. I am not that kind of rapist. Nor have I laced the drink of a girl at a frat party, or explained to a girl who kept saying no and crying as I unbuttoned her blouse that she really meant yes. I could go on, but suffice it to say that I'm like a boy scout when it comes to women. Honest.

Okay. I can tell you're confused. You're wondering, is this guy a rapist or what?

Sometimes, I ask myself the same question.

Maybe it's all in his mind, you're wondering.

Not in my mind.

INTRODUCTION

When it comes to rape, the case law is replete with troubling cases, but one of the most troubling is McQuirter v. State. (1) Part of the trouble has to do with the outcome of the case: notwithstanding the ambiguous evidence and a questionable confession, the Alabama court affirmed the conviction of McQuirter, "a Negro man," for attempting to commit an assault with intent to rape. (2) Part of the trouble also has to do with the court's endorsement of the means by which the jury was permitted to find the requisite intent to commit rape: "In determining the question of intention the jury may consider social conditions and customs founded upon racial differences, such as that the prosecutrix was a white woman and defendant was a Negro man." (3) But this, I think, is only part of why the case is so troubling.

Since the case is not well known--it broke no new ground, and the legal issue it addressed was not novel--some recitation of the "facts" is in order. According to the opinion:

About 8:00 o'clock on the night of June 29, 1951, Mrs. Ted Allen, a white woman, with her two children and a neighbor's little girl, were drinking Coca-Cola at the "Tiny Diner" in Atmore. When they started in the direction of Mrs. Allen's home she noticed appellant sitting in the cab of a parked truck. As she passed the truck appellant said something unintelligible, opened the truck door and placed his foot on the running board. (4) This much did not appear to be in dispute. In terms of what happened next, however, or rather how to interpret what happened next, the prosecutrix and the defendant had very different views.

Mrs. Allen testified appellant followed her down the street and when she reached Suell Lufkin's house she stopped. As she turned into the Lufkin house appellant was within two or three feet of her. She waited ten minutes for appellant to pass. When she proceeded on her way, appellant came toward her from behind a telephone pole. She told the children to run to Mr. Simmons' house and tell him to come and meet her. When appellant saw Mr. Simmons he turned and went back down the street to the intersection and leaned on a stop sign just across the street from Mrs. Allen's home. Mrs. Allen watched him at the sign from Mr. Simmons' porch for about thirty minutes, after which time he came back down the street and appellant went on home. (5) For his part, the defendant, who had never before been arrested, presented several character witnesses. (6) The defendant also testified in his own defense, denying that he followed Mrs. Allen or otherwise acted inappropriately.

Appellant, as a witness in his own behalf, testified he and Bill Page, another Negro, carried a load of junk-iron from Monroeville to Pensacola; on their way back to Monroeville they stopped in Atmore. They parked the truck near the "Tiny Diner" and rode to the "Front," the colored section, in a cab. [He] came back to the truck around 8:00 o'clock and sat in the truck cab for about thirty minutes. He decided to go back to the "Front" to look for Bill Page. As he started up the street he saw prosecutrix and her children. He turned around and waited until he decided they were gone, then he walked up the street toward the "Front." When he reached the intersection at the telegraph pole he decided he didn't want to go to the "Front" and sat around there a few minutes, then went on to the "Front" and stayed about 25 or 30 minutes, and came back to the truck. (7) Again, McQuirter v. State is a troubling case. There are the troubling legal and factual issues. Demarcating the line between innocent acts, mere preparation, and criminal attempt is notoriously difficult. (8) And since the crime of assault is itself predicated on the notion of attempt--an attempted battery--McQuirter's conviction on the charge of "attempt to commit an assault with intent to rape" seems doubly problematic. (9) The court's circular clarification--the court translates the charge as "an attempt to rape which has not proceeded far enough to amount to an assault" (10)--only adds to the difficulty.

There are also the racial issues. I have already referenced the court's conclusion that the jury was permitted to consider "social conditions and customs founded upon racial differences" in inferring intent. (11) But the racial issues go beyond this overt remark. There are also the racialized mores. For example, the court, in identifying the white witnesses, uses the address "Mr." or "Mrs." (12) No titles are allowed either McQuirter or the identified black witnesses. (13) (There are gender issues as well, to be sure; that the prosecutrix is referred to by her husband's full name, a common practice in the 1950s, is but one example.) The opinion takes for granted, and in doing so adds legitimacy to, the notion of racialized spaces. That McQuirter had stopped in the white part of town, and that there existed the "'Front,' the colored section," (14) is taken as a given. That McQuirter's walking alone on the same street as Mrs. Ted Allen, "a white woman," (15) was an encroachment upon her space, is also taken as a given. Even McQuirter, in his testimony, understood that the proper thing to do once he saw Mrs. Ted Allen was to "turn[] around and wait[] until ... they had gone." (16) Space is racialized, and so is sex. By sex, I am not referring to gender here. I am referring to actual sex. It is not only the possibility of non-consensual sex that is being policed; what is also rendered illicit is even the possibility of interracial consensual sex. What is at risk is not just sexual intercourse, but its natural precursor, social intercourse.

All of these are troubling issues. And when I teach McQuirter, many students respond by attempting--there is that word again--to de-trouble the case. They do this in one of two ways, either through hypothesis or by engaging in a distancing maneuver. The hypothesis posits that it really was McQuirter's intent to rape Mrs. Ted Allen, in which case the guilty verdict was a just one. The distancing reaction assumes that, whether or not McQuirter intended to rape Mrs. Ted Allen, the significance of the case is entirely historical--a vestigial relic of how easy it was to bring rape charges against black men in the South, at least where there was a white "victim."

For me, McQuirter is not so easily cabined. It is not so easily dismissed. 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. (17) 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." (18) 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...