Consent to Interrogation and Sex: the Role of Default Rules

By Sherry F. Colb

My column on FindLaw this week analyzes the Supreme Court's recent decision to permit suspects to waive the right to silence simply by providing answers to police interrogation.  If a suspect wishes to avoid interrogation altogether, he must specifically invoke his rights (by saying, for example, "I wish to exercise my right to remain silent").  Otherwise, if he remains silent, the interrogation may proceed after the reading of the warnings.  I suggest in my column that this vision of the Miranda warnings departs from the underlying philosophy of Miranda, which considers custodial interrogation to be inherently coercive and thus likely to inhibit a suspect from directly asking police to stop interrogating him.

On a criminal law/procedure listserv, one professor contrasted this approach to Miranda waiver (in which the default permits interrogation to go on, and the suspect must assert himself to make it stop) with New Jersey rape law, which allows a jury to convict a defendant of rape even if the victim did not affirmatively refuse consent.  The view of this professor was that there ought to be a greater "presumption against consent" in the case of a suspect in custody than in the case of a woman in intimate circumstances with a man.  In this post, I will consider the validity of this argument.

The context of sexual relations is, of course, quite different from the context of custodial interrogation.  (At least, one would hope that it is.)  The two (or more) people involved in a sexual interaction are, by hypothesis, consensually in each other's presence and therefore generally better able to assert themselves than prisoners in custody.  Telling a police officer not to ask any (or any more) questions is, from this perspective, a far more difficult matter than telling a date not to insert himself into one's body.  This is why, for example, it would be undesirable for the law to require men to announce to women prior to penetration, "You have the right not to be penetrated."  Such announcements have no place in a romantic encounter and would likely alarm rather than empower the listener.

On the other hand, understanding that romantic encounters are generally fun and exciting (and consensual) rather than terrifying and nonconsensual, in the way that being arrested is, does not necessarily answer the default question.  The default question is whether, when a woman and a man (or two men, etc.) are on a date, the default presumption is consent to penetration.  That is, the question is whether one has already consented to intercourse by kissing or being alone on a date, such that penetration is permissible in the absence of an affirmative "no" or active resistance.  My view is that the answer is, and ought to be, no.

Some readers will object that consent can occur wordlessly, through actions, during a romantic encounter.  I agree.  I do not believe that people necessarily need to communicate with words in order to have what is understood by both parties to be consensual sex.  On the other hand, something beyond simply being in each other's presence on a date ought to occur before consent to intercourse is inferred.  For example, if two people are on a date and alone, and the two kiss, that does not represent consent to sex.  If the man, in that situation, takes off his clothes and his date's clothes and penetrates his date without her saying or doing anything at all after the kiss, then he has not obtained consent in any meaningful sense.  One would hope, of course, that if one partner is motionless and unengaged, the other partner would notice this and stop of his own accord.  If he wishes to continue, however, notwithstanding his partner's total passivity, he should have to make sure that she consents and not simply presume that she does.

Consensual sex -- in the absence of a specific understanding to the contrary -- is a mutual activity, not something that one person does to another person.  If, in a given case, one person is simply acting on the other, then the presumption that the other wants what is happening to continue is groundless.

This is where we get back to the context of the police interrogation of a suspect in custody.  The Court assumes that if a suspect wanted the questions to stop, he would just say "stop."  As critics point out, however, it seems more appropriate to assume that the suspect wants the questions to stop (or not to start in the first place) in the absence of either an express waiver or some statement initiating a dialogue with the police.

Though a romantic encounter represents a very different circumstance, it is still true that if a woman is sitting or lying down motionless as her partner disrobes her and himself and then proceeds to mount her, it seems likely that she does not want him to penetrate her body.  Unlike consent to police interrogation (in which the point is to get answers from a suspect), the point of sex is to satisfy the desires of both of the parties (or all of them, if more than two people are involved).  If one of the parties is not affirmatively indicating an interest, by words or by behavior, it is therefore as important (if not more important) to ask "are you okay with this?" or "can we continue?" in the sexual context as it is in custodial interrogation.

In police interrogation, if it turns out that a suspect did not want further questions (and did not in any way waive his rights), his answers may be suppressed, and he is made whole by that remedy.  The Fifth Amendment gives him only the right not have his compelled answers used against him in a criminal case (assuming no Due-Process-violating violence).  For the person who did not want sex, by contrast, there is nothing that will truly repair the harm of nonconsensual penetration.