Monday, January 18, 2016

Knowing about Sexual Assault, Having Enough Evidence, and the Contextualist Fallacy

Last week I wrote an op-ed in the Vancouver Sun about university sexual assault policies. One of the things I tried to do there was to draw a connection between some of the questions in that area and my own research into knowledge and contextualism. I tried to make the case that a kind of contextualist fallacy lies behind some attitudes about university sexual assault policies. I still think that's plausible and interesting, although there are certainly competing possible explanations. But a tweet I received in response definitely commits the contextualist fallacy.
The contextualist fallacy is the failure to attend to the context-sensitivity of language, allowing for the construction of a superficially apparently-valid argument that is in fact fallacious. For example, the word 'now' is context-sensitive. Sometimes when it is used, it refers to 9:47 am Monday, Jan 18. (In fact, that's the time that word refers to when I utter it right now.) Here is a true sentence:
1. It is before 10:00 Monday right now.
Actually, although it is before 10:00, it's not very far before 10:00, when I have to teach. So I'd better come back and finish this post later.
OK, I'm back now. Class was good, thanks for asking. What time is it? It's 11:03. so this is true:
2. It is after 10:00 Monday right now.
Now, where was I? Ah yes, the contextualist fallacy. Here's a clear, albeit silly, example of the contextualist fallacy:
Sentence (1) is true, and sentence (2) is also true, therefore sometimes it is both before and after 10:00.
This argument is obviously fallacious. The word 'now' in (1) had a different referent than did the same word in (2). I've been arguing for a while, in a series of papers and a forthcoming book, for contextualism about knowledge ascriptions, which is the view that 'knows', like 'now', does different things in different conversational contexts. Roughly speaking—this is an oversimplification for reasons I really care about and talk about in the book but don't want to be distracted by further than this one sentence—when we're in conversational contexts where extremely momentous decisions are being made, or where serious possibilities of error are taken seriously, sentences using 'knows' make logically stronger claims.

For example, suppose I am considering crossing a rope bridge. A few feet underneath the rope bridge is a large, solid wooden platform. The bridge looks like it's in pretty good shape. I know a bit about bridges and the strength of ropes, and have no particular reason to suspect this bridge. This may be true under the circumstances:
3. I know that the bridge can hold my weight. 
But if the wooden platform is removed, revealing a vast precipice below, even if my evidence and attitude about the bridge are exactly the same, given the high stakes, (4) might be true:
4. I don't know that the bridge can hold my weight.
The tension between (3) and (4) is a genuine epistemological puzzle; contextualism assimilates the tension to the contextualist fallacy.

In my Sun piece, I suggested that the same thing is going on with discussions about standards of proof in cases of alleged sexual assault. Suppose three people witness a student rape another student, and they tell me about it. Then (5) can be true:
5. I know that student X sexually assaulted a student.
In general, when three people see something happen and they tell me about it, I can come to know that it happened. But although my evidence suffices for 'knowledge' relative to ordinary contexts, it might not do so in contexts involving much higher standards of proof. In a courtroom context, for example, where X is literally on trial for criminal sexual assault, I think there's a case to be made that (6) is true.
6. I don't know that student X sexually assaulted a student.
Certainly I can't testify that X sexually assaulted a student; I didn't see it happen, I only heard about it from others. They didn't give me an affidavit; they haven't been cross-examined. All of them were drinking that night; some of them are unwilling to testify in court. Under the circumstances, there may not be evidence sufficient to convict X. So X does not go to jail.

None of this means I don't know, relative to the less strict, non-courtroom context, that X sexually assaulted a student. Outside the courtroom, (5) is still true. (Remember that "the court finds the defendant not guilty" is a misnomer. The court found that there was room for reasonable doubt, and that the defendant could not be convicted. This is not at all the same as being innocent!) The lack of a criminal conviction means that X doesn't go to jail; it doesn't mean that I don't know about the sexual assault, or that I or my university should pretend that nothing happened. Although there's something tempting about the skeptical argument—there wasn't evidence sufficient to convict; so we can't know that X is guilty; so it would be unfair to do anything about X's alleged behaviour—I think it commits the contextualist fallacy.

I don't ordinarily draw attention to arguments like this one, but I received this tweet in response to my suggestion:
what about the rights of the accused? If there's not enough evidence, how can you justify punishing somebody?
I think that this argument clearly demonstrates the contextualist fallacy. "If there's not enough evidence, how can you justify acting?" 'Enough', like 'now', is obviously a context-sensitive term. Do I have enough money? Enough for what? I have enough money to buy a new suit, but I don't have enough money to buy a new house. Here's a terrible argument: Jonathan doesn't have a million dollars, which is what he'd need to buy a new house. So he doesn't have enough money. And he shouldn't buy a new suit if he doesn't have enough money. So he shouldn't buy a new suit. Maybe I shouldn't buy a new suit—arguably I have enough suits already—but the fact that I don't have enough money to buy a new house definitely isn't why. In exactly the same way, lacking enough evidence to put a rapist in jail clearly doesn't mean that one lacks enough evidence to respond in other ways. The fact that some people are tempted to react in this way confirms my suspicion that the contextualist fallacy is part of the problem in thinking through these issues.


  1. Hi, Jonathan.

    Interesting. But I suspect many of these people are thinking something like the following: there are contexts (like the legal one) where a very high standard of evidence must be met, and other contexts where a less high, but still fairly high, standard must be met (e.g. the context of taking somewhat less serious action against the accused). There are some cases in which there is enough evidence to meet both standards, some cases in which there is not enough evidence for either, and some cases in which there is enough for the latter but not for the former.

    Possibly, it seems, the difference between you and some of your interlocutors is not that they fail to recognize the significance of the different context, but that you feel that, in the less serious context, the evidential burden has been met, while they think it hasn't been met for that same context.

    1. The first paragraph sounded good. I didn't understand the second paragraph, though, since I thought we were talking in the abstract about there being some possible cases. How can my interlocutors disagree with me about what has occurred in these hypothetical cases? We've stipulated none of the relevant details.

    2. True, you haven't stipulated any of the relevant details. But I suspect that in many cases in which these disagreements come up, the difference of opinion is at least as likely to arise from a different idea of what satisfies the burden of proof *in that case or case-type* as it is to have arisen from a confusion about different epistemic contexts.

    3. Sure, that's a substantive and important question, and one about which there can be reasonable disagreement.

  2. I also think this distinction is useful for not getting too pissed about the verdicts of certain cases. Basically, this is how I understand the Trayvon Martin case: it was (arguably) decided correctly, since there was room for reasonable doubt, even though I believe, and maybe even know, that Zimmerman was guilty. I was still pissed that that schmuck got off, but less pissed than many others. And of course there are many other cases that are just blatant miscarriages of justice. The US system is *designed* to let many guilty people go free, because we want to minimize (roughly) the number of innocent people who are convicted.

  3. While I agree with the argument that this was a contextual fallacy, if the author went to court to testify that he "knew" the student had committed rape because of reports by other students, his testimony would be stricken or denied as a case of "hearsay." Thus, legally, he could not testify and get it accepted. Morally, that's another matter, and he might be sure of what the students told him and has reached his own moral conclusion, but legally it is not enough.

    1. This is right; it's an important part of my point. Did you mean to be disagreeing?

  4. Hi Jonathan, thanks for a fun post. It's always nice to see colleagues playing out ideas in public fora like this.
    But I'm not convinced that what you've done here isn't just word play. What I mean is, isn't a substantial part of the purported puzzle here the unreasonable equation of 'believe' and 'know'? That is, when three people tell you that they saw something, you don't know it but you likely and mostly believe it.
    Similarly, in your set-up, it doesn't sound like you *know* that the rope bridge can hold your weight - but you mostly *believe* that it can and you figure that even if it can't, it's not a disaster because of the boardwalk.
    What's the "genuine epistemological puzzle" here? Am I mangling the problem?

    1. I think that it's implausibly skeptical to suppose that we never know, but merely believe, things when three people tell us about them. I think I know where the meeting I'm attending tomorrow will be held, for instance, even though only one person has told me. (If someone asks, "Jonathan, do you know where the meeting is?", I don't think I should say "no" on the grounds that I'm relying on somebody else's word.)

    2. Ha! Thanks for the quick reply. I love this stuff. I don't think I understand any more what the "genuine epistemological puzzle" is here yet. When you have a second, I'd love to get it cleared up.
      But does your meeting analogy make your point? I'm not sure it does. What I mean is, you don't *know* where tomorrow's meeting is, do you? It hasn't happened yet so you can't be certain it'll happen there, the person who told you could be wrong, there could be a typo in the email, or there could be a conspiracy to keep you out of the meeting to avoid you casting your vote.

    3. Again, I think that the view that I don't "really know" things like this is implausibly skeptical. This is something I go into in depth in my course on epistemology. I recommend ch. 6 of Jennifer Nagel's "Knowledge: A Very Short Introduction" for a fuller exploration of the issues.

    4. Hi Jonathan, thanks for replying, though you didn’t really respond to my question. I’d take your class or read that book, but I’ve got my own to teach/finish right now – you know how it is. Maybe just give me the jist of why there's a puzzle here, and not just word play?

      I don’t see my point as implausibly sceptical. But if you really know something to be true because three people told you, me and two friends have a fantastic swampland real estate opportunity to pitch to you sometime. Or maybe this goes back to that old Stephen Colbert comment about the difference between knowing something in your brain and knowing it in your gut?