What Miranda Can Teach Us About Sexual Consent

When the US Supreme Court decided Miranda v. Arizona, in 1966, several dissenting justices and many people within law enforcement feared the worst. Perhaps the suspects in custody who previously would have confessed would now hear of their rights to remain silent and to consult with counsel and clam up. An important form of incriminating evidence would thus vanish. Thirty-four years later, the Supreme Court handed down United States v. Dickerson, rejecting an effort to eliminate Miranda. In the time between the two decisions, worries about Miranda had proven unfounded, and police administrators were generally comfortable with the continued use of the warnings.

In this column, I will explore some of the lessons that Miranda and the world that developed in its wake can teach us about the seemingly very different problem of sexual consent. I will suggest that despite the important distinctions between a suspect in police custody and a woman alone with a man on a date, there are some commonalities. Those commonalities, I will propose, mean that both the strengths and weaknesses of Miranda can help us to figure out how best to design the rules defining sexual assault.

Why Miranda?

The Court adopted the Miranda rules at least in part because it was having a difficult time handling confession cases. Such cases called for a determination of whether a suspect’s statement was voluntary, but voluntariness is an inherently fuzzy concept. Unless someone confesses by spasm, her statement is in some sense voluntary, even if her choice to speak came as a response to a death threat. Yet no one would dispute that death threats represent unlawful compulsion under the Fifth Amendment.

At the opposite extreme, if voluntary means spontaneous and independent of any state action, then responses to interrogation can never be truly voluntary, because police questioning will necessarily have played a role in causing the suspect to make her statement. Yet few would advocate a conception of voluntariness that precluded all police interrogation, however gentle and civilized.

So where is the happy medium? It is difficult to say with any precision. Some factual scenarios might add up to “compulsion” in the view of one judge while seeming “voluntary” to another. No formula could adequately capture the meaning of compelled self-incrimination.

So the Court built the Miranda edifice. Instead of having to determine in each case whether or not the circumstances surrounding a suspect’s statement qualified it as “voluntary” under some forever elusive criterion, courts would instead ask whether police had given the suspect warnings. Suspects might still raise a voluntariness challenge to the waiver of their rights, to be sure. But courts could reasonably show less interest in voluntariness once they had the concrete factual matter before them of whether the police read the warnings. It had been harder to avoid a voluntariness inquiry when it was the only game in town, but with Miranda on the books, the need to adjudicate suspects’ claims that their confessions were compelled (or that their waivers were involuntary) was greatly reduced.

Some people initially worried about the potential impact of Miranda because all of the tricks that police had used to induce suspects to talk could either prove unlawful (because Miranda had cited these tricks to illustrate the problem that needed to be addressed) or might at least become ineffective once suspects were told of their rights. Suspects could just say, “I don’t want to talk to you” or “I want a lawyer,” and police would have to stop the interrogation. Some believed that valuable self-incriminating statements could come to a screeching halt.

We will see momentarily what happened in Miranda’s aftermath, but for now, let us consider a different debate about the impact of a blanket rule regarding voluntariness.

No Means No

In the 1990s, arguments raised against the “No Means No” approach to acquaintance rape paralleled the worries of the Miranda critics. “No Means No” means that if a man’s romantic partner says “no,” and the man nonetheless proceeds to have intercourse with his partner, the sex is nonconsensual, and the man has committed rape, even if there is no force or threat. Opponents of “No Means No” worried that such a standard would unfairly stigmatize as sexual assault much of the consensual sex that people were having, because, they contended, women frequently say “no” when they do not mean it.

Such advocates argued, among other things, that because women were inhibited about owning their own sexual desires, they would often feel obliged to say “no” even if they actually wanted a sexually aggressive partner to continue what he was doing. In this analysis of sexual dynamics, saying “no” was for some number of women like a cultural rule holding that you must refuse tea when your host first offers it to you, even if you actually want the tea.

Yet no cultural rule says that after you refuse it, your host may pour the refused tea down your throat. Thus, the claim that a (straight) man should be able to override a woman’s “no” to sex never really jibed with how human beings conduct ourselves in other areas of life.

Nonetheless, for purposes of argument, let us assume that opponents of “No Means No” were right that some women felt obliged to say “no” regardless of how much they wanted sex. The consequence of “No Means No” would, in that case, be that men—conforming their conduct to the law—would refrain from having sex with women who really wanted sex but felt obliged to say “no” anyway. This would leave the reticent women in question sexually frustrated.

The much greater upside of the rule, however, was that even if some women said “no” but meant “yes,” the many women who said “no” and meant “no” could successfully avoid nonconsensual sex without having to try physically resisting a stronger partner. It seemed to me, in contemplating this projected consequence, that satisfying the desires of people who feel compelled to deny those desires is less important than preventing unwanted sex for those who say “no” and mean it. If one has to choose between the two objectives, protecting against unwanted sex should win the contest. Such an approach might even have the salutary effect of motivating the frustrated women to begin to use the word “no” for its intended purpose.

The Fears Do Not Come True

Despite all the worries, Miranda has proven to be consistent with police doing what they need to do to get statements from suspects in custody. An analysis of the impact of Miranda explains that although it has had some effect on suspects’ willingness to talk, it has not posed the obstacle that people predicted it would. With Miranda having a relatively modest impact on suspects’ willingness to give a statement, the decision could actually be helpful to prosecutors. Instead of getting into the nitty-gritty of voluntariness in suppression motions and on appeal, prosecutors could simply show that police read the warnings to a defendant and that the defendant subsequently admitted wrongdoing.

The Supreme Court, interpreting Miranda in later cases, also helped police in a variety of ways. In Davis v. United States, the Court held that a suspect’s ambiguously invoking the right to counsel would not trigger an obligation on the part of police to cease their interrogation. The Court also said, in Berghuis v. Thompkins, that after hearing the warnings, if a suspect’s reply was silence, then police could respond to that silence by interrogating the suspect. If he wanted the interrogation to stop, then the suspect needed to say so expressly. The presumption is thus “consent” to interrogation, once police have read the warnings.

Meanwhile, from a suspect’s perspective, Miranda’s promise has gone substantially unfulfilled. Because the environment of custodial interrogation remains as coercive as the Court understood it to be back in 1966, the simple reading of rights did not empower suspects all that much. Without either (a) providing an attorney as a matter of course, rather than requiring that a suspect ask for one (unambiguously), or (b) expressly informing the suspect that even if an interrogation has started, he can make it stop at any time and for any reason, suspects did not feel all that emboldened to exercise their rights.

The analogy to rape should by now be apparent. Opponents argued in the past (and some still argue now) that a “No Means No” approach would keep people from having the sex that they want. But now fewer people of good faith press this “no often means yes” argument, perhaps recognizing that regardless of what women sometimes do as a practical matter, it is crucial to err on the side of prohibiting sex when one of the parties has expressly stated that she does not want it. Indeed, many have come to recognize that far from being overused, the word “no” may be underutilized in sexual situations. Women have sometimes felt unable to speak up in protest, even when they very much wanted a partner’s sexual advances to stop.

Thus, the right to say “no” and have that “no” honored might not be enough. For many women, it might feel difficult and scary to tell a man to stop what he is doing without ambiguity. What if the man becomes angry and violent as a result? As one writer put it, many women are terrified of male anger and will therefore avoid directly confronting a man by saying “no.” Like the Miranda warnings, it turned out that “No Means No” might not be enough. For some women, saying “no” feels dangerous, even though they will feel sexually assaulted after a man has done his thing without paying attention to signals of discomfort and distress.

What To Do About It?

What is the solution? In the case of Miranda, there is a difficult choice. If we want to continue to get lots of incriminating statements from suspects in custody, we will keep things the way they are. But if so, we really ought to acknowledge that we are sort of pretending to protect suspects’ rights by reading them the warnings, knowing that many will answer questions however much they want the questions to stop. We are thus lending to the interrogation scenario the appearance of voluntariness without the full reality of it.

Or we could decide that we actually want suspects to speak only when they feel empowered to refuse to speak. In that case, we will allow them to ambiguously invoke counsel to end interrogation. We will tell them expressly that we are about to interrogate them, ask them whether they are okay with our asking questions, and then let them know that even if they have begun answering our inquiries, they can stop the interrogation at any time by mentioning the word “silence,” “attorney,” “lawyer,” or anything that signals a desire to end questioning.

In the case of rape, it seems a far easier choice. We ought to adopt “Yes Means Yes.” So long as everyone has clear notice of the new approach, what would we lose by classifying as nonconsensual the sex that happens without an inquiry such as “Is this okay?” At the very least, such checking in should precede genital contact or penetration. Perhaps some women (or men) who feel inhibited about their desires might find themselves unable to say “yes.” In that case, they will have to deal with sexual frustration. Someday, they will learn to say “yes” in response to a request, and they will get the sex that they want. Or they will remain frustrated.

The other cost is that men who ignore the new rule could be punished for nonconsensual sex/assault even though they believed they had consent. If they know the rule, however, and they understand the purpose of the rule—to protect people who might feel too intimidated to say “stop”—they can easily abide by it.

On the upside, intimidated women (and men) can become romantically involved and know that they will be consulted before their partners have sex with them. Losing valuable incriminating statements from suspects is a much greater loss than the possibility that people who secretly want sex but are unable to say so for reasons of shame or inhibition will be denied the sex that they crave. (And to the extent that a woman or man prefers not to be consulted, it is easy enough to say “For the rest of the night do what you like without asking—I’m in until I say stop!”).

As with Miranda, we have come to learn that true voluntariness may require more than we originally thought. In the case of suspects in custody, this is because police officers and the custodial atmosphere can be very intimidating, even with the Miranda warnings. In the case of women on dates with men, #MeToo revelations have taught us that sexual misconduct is far more pervasive than many imagined. Otherwise prestigious and well-credentialed men have felt free to assault and/or sexually harass women, and the latter have felt powerless to make the perpetrators stop.

If we are prepared to do something about sexual assault, we should adopt a “Yes Means Yes” approach to consent, not only on college campuses but in the criminal law as well. Accomplishing this will be no easy task, as a large majority of states have not even progressed from requiring force or the threat of force to a “No Means No” rule. Yet the fight is still worth having.

Insisting on voluntariness in sexual relationships is a fundamental part of granting women (and the men who are subject to sexual assault) the “equal protection” of the laws. While an involuntary confession can be suppressed at trial, nonconsensual sex cannot as easily be “fixed” after the fact. It must therefore be prevented from happening in the first place. And for effective prevention to occur, sex without consent must be punished, not only when a victim physically resists and yells “no,” but even when a person who is uninterested in sex exercises her right to remain silent.