Rape and Confessions

Posted in: Criminal Law

When we speak of “rights,” we tend to mean one of two things. One is an entitlement to something (such as the right to life). The second is an entitlement to choose whether or not one wants something (such a right to freedom of and freedom from religion).

In many situations, people claiming a right to something believe that the something at issue is affirmatively good, while the opposite of that something is certainly bad. For example, in advocating for a right to safety, no one hastens to add that there is also a right to a lack of safety, if one prefers. In the argument that everyone should enjoy freedom from invidious discrimination, we rarely hear anyone say that we have the right to be objects of invidious discrimination if we so choose. And although we can in fact opt to avoid school, people proposing a right to higher education generally feel no need to defend the idea that people must have the power to refuse the opportunity to attend college. As a practical matter, the right to safety, the right against discrimination, and the right to an education may entail the right to make choices that result in danger, discrimination, and ignorance. Yet such rights are not, in their essence, about making choices.

Choice, however, is essential to other rights, which necessarily run in both directions. Two examples of such rights are the entitlement to freedom from rape and the right to be free of compelled self-incrimination. In this column, I will explain what I mean by the two-way nature of these rights. What I certainly do not mean is that there are rights to be raped or to be compelled to confess to a crime. Rather, I have in mind the idea that too-strict enforcement of the right to say no—whether to sex or to interrogation—could undermine the right to say yes, which has value.

The right to have consensual sex is more than simply a corollary of the right to refuse consent to sex; it is valuable in itself. Acknowledging that reality is a first step towards devising laws and social practices that minimize unwanted sex without unduly constraining the right to sexuality. And though we reject police coercion of suspects, we welcome voluntary self-incriminating statements that a suspect feels moved to offer to his interrogators.


The law defines rape in various ways in different jurisdictions, but here I am less interested in the law’s definition than in what people typically mean when they talk about rape. A widely accepted core understanding defines rape as one person having nonconsensual sexual intercourse with anyone else. Despite that commonly accepted core, differences in understanding remain.

“Nonconsensual” can refer to physical force or threats, or it can mean that the other person has said “stop” or “no” or has otherwise perceptibly conveyed the message that she (or he) does not want the sex to happen. I support affirmative consent requirements (which treat non-consent rather than consent as the default in romantic encounters), for reasons I have explained elsewhere. However, I apply the narrower definition here because it is less controversial.

Yet even my narrower definition is contested, because it includes situations in which two people are dating (or even married) and seem to be attracted to each other. They might be kissing and touching each other, and thus their behavior seems to differ from the classic scenario that people imagine in which the rapist jumps out of the bushes and attacks a passerby. In that stranger-rape case, non-consent is completely obvious, and a consent defense would strike just about anyone as utterly implausible.

When two people are already engaged in sexual “foreplay,” however, the consent story is a believable one. Upon hearing “we were making out for a while, and then we took off each other’s shirts,” the revelation that the two went on to have intercourse is not a surprise ending. Yet some may wonder why previous sexual interaction should matter. Manifesting one’s attraction for another person does not forfeit the right against rape.

Still, the intimate and sexualized context of date rape does matter. It means that legal prohibitions and instructions could affect not only rape but consensual sexual encounters as well. Telling people who hide in the bushes “you cannot have sex with a passerby,” by contrast, will have no impact on romance, because few if any people value the right to have surprise sex with strangers who have just leapt out of their hiding places.

When two people find each other attractive, by contrast, they might resist the government’s efforts to script their interactions. Perhaps they imagine a rule under which a man must ask a woman before each escalation in sexual intimacy, “Do you consent to my doing the following . . . ?” and the woman must indicate her assent. There already exist apps through which men can memorialize their partners’ sexual consent. Some women (or men), however, might find the app to be a turnoff or might not want to create a recording of them saying that they consent to intercourse with this particular person.

The reason that many people feel uncomfortable contemplating the regulation of sexual relations is that in addition to the right against unwanted sex, people feel strongly about their right to have wanted sex. Most people wish to choose their partners and to move from flirtation to physical intimacy in a spontaneous manner. People generally do not want the government—or their university or employer—to prescribe the things they can say and do before and during lovemaking.

Especially for a couple that is having its first sexual experience together, the potential for awkwardness is great enough without having to ask and say the things that Antioch College once required, and that predictably led to satire. Taking date rape seriously could have the unwanted but foreseeable consequence of inhibiting mutually desired sexual liaisons.

I have written about the other side of this question before, so I will say little about it in this column. I will suggest that making sure that one’s partner is consenting need not necessarily disrupt the spontaneity of a sexual interaction.

In a feminist theory course I taught in the early 1990s, I asked the women (who were all but two of the students in the class) what they thought about the Antioch “can I escalate intimacy and place my hands on your buttocks” approach. After some awkward laughter, a number of women said that asking for consent for every step is ridiculous. However, she and her classmates developed a consensus around the idea that men should have to ask them for permission before initiating intercourse itself.

This preference may reflect a difference between men and women, within heterosexual relations: women may regard penetration as a big deal—an item on the menu that they might or might not want, notwithstanding their interest in everything prior to that—while men may think of penetration as the sine qua non of a sexual interaction. Why drive to a restaurant, sit at a table, and order a meal if you don’t get to eat it? This admittedly overgeneralized difference in perspective calls for communication of some kind.

Men can find out whether a woman wants to have intercourse by asking a very simple question like “are you okay with this?” or “are you ready?” when the magic moment arrives. If the goal is to keep going only if a partner is game, they can see whether the answer to their question is “yes” or whether a physical act unambiguously communicates “yes.” If their partner instead says, “no” or “I don’t know” or “well . . .” or even “I guess . . .,” or says nothing at all, then the response sounds very much like “No, but I like you/find you attractive/want to keep seeing you.”

Some of these answers may offer consent, but having intercourse with someone who prefers not to—even when the sex is technically consensual under the law—seems like a bad idea, as this short story effectively conveys. A man who habitually treats intercourse as a prize that he can extract from reluctant women risks eventually missing the fact that the woman who is with him right now has not consented at all. There is a continuum along which a person (often but not always a man) becomes increasingly unaware of (and possibly indifferent to) the wishes of his partner(s).


How are confessions like sex? Well, strictly speaking, I would draw the analogy between rape and coercive interrogation. The similarity then becomes obvious. In both cases, someone is forcing someone else to do something that he or she does not want to do. But does the analogy extend beyond the use of force?

When police take a suspect into custody, they have just about complete physical and psychological control over that suspect. As the US Supreme Court recognized in Miranda v. Arizona, such control amounts to coercive pressure that leads the suspect to try to please his or her custodians. For this reason, the Court directed police to give warnings to those whom they place under arrest, prior to interrogating them. Absent warnings, the suspect’s statements look like the product of compulsion.

No one wants sexual partners to give each other Miranda warnings. It is nonetheless useful to observe that interrogation occupies a continuum that resembles the one we saw in the context of sexual interactions. Just as everyone wants to protect good sex (and even mediocre sex) from state interference, most people would like to keep “good” confessions as part of the criminal justice system.

Some interrogation involves gentle but skilled conversation in which the suspect feels like talking, and the police simply ask follow-ups and perhaps point out inconsistencies. Other interrogations involve more pressure from the police and a corresponding increase in stress and discomfort on the part of the suspect. Still others deploy force or the threat of force—perhaps subtle—that leads the suspect to confess in order to avoid getting hurt.

Like potential rape victims, suspects in custody sometimes give signals that they are feeling unable to assert themselves due to fear. A woman who does not want to have sex with her date might say something inoffensive, like “Do you want to maybe go for a walk?” or “I’m thinking maybe I should go home?” A suspect who wants the interrogation to stop might say, “Maybe I need a lawyer?” or “Are there a lot more questions left?”

In both of these cases, a person who is scared that a firm order to “Stop!” could anger the other party attempts to let the latter know more subtly that she is no longer comfortable with continuing. If her words have no impact, then she might conclude—in both cases—that what happens to her next is up to the other party rather than up to her.

The Supreme Court held in Davis v. United States that when a suspect in custody poses questions or makes equivocal statements about counsel, that behavior does not trigger the Edwards v. Arizona right to have the interrogation promptly halt and not resume until counsel is present. As Janet Ainsworth insightfully observed in the Yale Law Journal, requiring assertive clarity may differentially burden women and people of color. I would add to this observation that once police ignore a suspect’s subtle attempt to end an interrogation, the suspect might conclude that he is powerless to make the questioning stop, other than by telling the police what they want to hear. Suspects might even worry that becoming more assertive could make police angry.

Using Our Understanding of Confessions to Inform our Understanding of Sex

The application to sex may now be clear. We first put aside sexual interactions in which both members of a couple are plainly manifesting their enthusiasm for what they are up to. We are addressing people at a different point along the continuum, one at which one member of the couple is active and enthusiastic, and the other is doing very little and showing little-to-no enthusiasm. For this couple, the question is one of consent rather than one of joyous participation. Imagine this couple is engaged in a sexual interaction but is not yet having intercourse, and the woman asks the man, “Can we slow down?,” “Maybe we should call it a night?,” or “Maybe we could go to sleep now?”

None of the above utterances truly requires a question mark at the end. If the woman wants things to “slow down” (a euphemism for “stop,” for those not in the know), to call it a night, or go to sleep, she is entitled to do those things. She needs no permission for them. So why the question marks?

A tentative question-like presentation can reflect a person’s desire to placate her date/friend-with-benefits/partner, much as it might in a stationhouse interrogation. The two situations are obviously different in important respects. Yet in each, an adult who knows what she wants may feel nervous about angering a man who was wanting and expecting something else.

Assume that a date who tentatively reveals that she wants things to stop encounters resistance to that message—in the form, perhaps, of clothes continuing to come off, kisses—now unwanted—going on, or further professions of lust coupled with groping. The woman on this date is likely to conclude that the man simply won’t take no for an answer, and she does not want him to become angry and persistent, because he could actually hurt her if he wanted to. Perceiving a potential choice between the “easy way” and the “hard way,” she selects the former, which is really no choice at all.

For most people, it may be easier to identify with the suspect in custody than with the woman who fails to assert herself on a date. After all, the suspect, by definition, lacks the freedom to leave, and the police seem omnipotent compared to him. He knows, moreover, that violent things happen in jail, and his captors seem to control the conditions of his confinement.

Of course he might think it wise to present his demands as tentative requests; he is acting in a classically submissive fashion before a more powerful individual. But why would someone who trusted another person enough to voluntarily enter a private space with him and perhaps kiss and touch him suddenly imagine him capable of forcing her to have sex?

I lack a definitive answer to this question. I can speculate as much as the next person—maybe intercourse is a bigger deal for (heterosexual) women than for (heterosexual) men, and that difference becomes salient at the moment before intercourse. As a gross generalization, maybe men who feel aroused by a woman virtually always want to have intercourse with her, while women who feel aroused by a man sometimes but not always want to have intercourse with him. A famous study suggests that an attractive woman can successfully recruit an overwhelming majority of random male strangers on the street to go home with her to have sex, while an attractive man cannot do the same with any random females.

If the male “demand” for intercourse in any given encounter exceeds the female “demand” for it (and thus its “supply”), we can expect the female to struggle sometimes to negotiate her way out of satisfying that demand. If we think of power as enhancing demand, women may legitimately wonder what might happen if they risk definitively saying “no.” I realize as I write this that I sound like I am commodifying sex and women, which I do not mean to do. The language of supply and demand, however, can be helpful in making sense of these situations.

We also have stereotypes exerting their own force on the thinking of men and women. Stereotypes hold that men want sex so much that they cannot always control themselves. We have words like “ravishing” to describe an attractive woman as essentially “rape-able.” If the woman has absorbed the stereotypes, she may think that (a) she is acting unfairly if she stops the man before he is satisfied, (b) the man may be unable to stop himself anyway, and (c) he could therefore become justifiably angry at her and out of control if she assertively tries to stop him, which may mean a violent rape. Stated differently, the woman might believe that if she asks her partner to stop, she is asking for something that she is not really entitled to have and might not get.

Meanwhile, the man may have accepted the stereotype that women say no when they mean yes (though the exact opposite may be true) and that women feel guilty about sex, as they do about eating chocolate, but they really want it, and it’s up to the man to take charge and give them what they want. With the various stereotypes working in tandem, one can easily envision a woman who is submissively expressing non-consent with a man who sincerely believes that for him to keep going is not really rape, even though it is.

A Solution in Both Contexts

To my mind, the solution, in the context of both coercive sex and police interrogation, is to educate everyone more effectively about what will and will not successfully make things stop. Suspects can learn that if they want an interrogation to come to a halt, they must say “I want a lawyer” with a period at the end of the sentence, something that appears nowhere in the Miranda warnings themselves. Women can learn that men are fully capable of restraining themselves when necessary. Just ask yourself what would happen if their mom walked into the room/apartment/house in the middle of a sexual liaison.

We can let women know that the overwhelming majority of men want all of their sexual interactions to be consensual, indeed to be more than consensual—to be desired. Women can see that saying “no” unequivocally need not be unkind. It takes time to read another person’s nonverbal signals, and that is why words can be so useful.

There are other things that sex and confessions share. Police may lie to suspects in an effort to get a confession without undermining the admissibility of the suspect’s statement. And dates may lie to one another about themselves and about their feelings for each other to secure a sexual relationship.

Some may press for law that requires super-voluntary confessions and super-consensual sex, though there could be downsides to regulating interrogation and sex this closely. If people pay attention to one another and give each other the space to make choices, we might be surprised at how many women will go well beyond technical consent in their response to a sexual invitation and at how many suspects still want to give incriminating statements to the police. It seems likely that the hidden fear—that without coercion, it might all disappear—could turn out to have been entirely groundless.