A few more thoughts on university sexual assault policies

This post is part of a virtual teach-in in commemoration of UBC Sexual Assault Awareness month. See the #UBCSAAM hastag on twitter.

I suggested last week that often there will be grounds for institutional action in response to allegations of sexual assault, even if no criminal charges are filed or a criminal conviction cannot be reached.

One common response is that a policy that permits action in response to an assault that can't be proven in court is unfair to the alleged perpetrator. (I received several thoughts along these lines from members of the public at large in response to my op-ed.) I think this is a mistake—one that may be motivated by a failure to take seriously my suggestion that we sometimes have genuine knowledge, even when we can't prove something in court. I do not advocate institutional action in the absence of evidence or knowledge; I don't think, for example, that universities should expel students merely because they suspect them of being rapists. My proposal is that we should act on our knowledge. If the university knows that someone is attacking other students, it should take action to protect them. People sometimes forget that it's possible to have such knowledge without criminal trials, but it is obviously true. (I know that I walked my dog yesterday morning, even though I'd probably have a pretty difficult time proving it in court.) This was the core thought behind my Vancouver Sun op-ed—just because something is a criminal offence doesn't mean that law enforcement is the only entity that can or should be involved.

I think it's helpful to compare other criminal actions—sexual assault activates some weird patterns of intuitions. Suppose a student, Shen, has a habit of punching other students in the face. I'm assigning my students to work together in small groups on an assignment, and Paksima expresses a desire not to work with Shen, because she's afraid that he'll punch her in the face again. I've never seen Shen punch anybody in the face—and when I ask him about Paksima's broken nose, he says he doesn't know how she got it, but speculates that maybe she broke her own nose to get him into trouble.

Depending on the details of the case, I think I might, under these circumstances, be able to know what has happened. While it is literally a case of 'he said–she said', there are possible such cases where one can know who is being honest and who is lying. But let's suppose for the purpose of argument that we're looking at a version of the case where I can't have genuine knowledge about how Paksima's nose ended up broken. Maybe for some reason the possibility that it's an elaborate and costly framing job is really live. I still face the question, what should I do about this situation? Paksima is asking not to be required to work with Shen, and she's citing grounds of her own personal safety.

I don't think anyone would take very seriously the idea that this should be my response: "Paksima, punching people in the face is a criminal matter, not an academic one. You should take your concerns to the RCMP; if and when Shen is convicted of criminal assault, I'll take the allegation into consideration, but unless and until that happens, I'm going to assume that nothing improper has happened. To do otherwise wouldn't be fair to Shen."

This hypothetical response is ludicrously callous; but it is exactly analogous to a widespread idea about what universities should do about sexual assault. If you think I shouldn't ignore unproven allegations about getting punched in the face, then it's hard for me to see why you shouldn't think the same about unproven allegations about sexual assault.

None of this is to deny that there are difficult questions to ask about what procedures should govern just what steps should be taken, given particular bodies of evidence. Returning to the case of sexual assault, I do think that if a university knows that a student is sexually assaulting other students, he should be expelled. But I don't think it's at all a trivial matter to put institutional frameworks in place to investigate allegations and establish appropriate responses. That is to say, I don't think it's an easy matter to figure out what appropriate sexual assault policies are.

I also want to emphasize that punitive actions are only one part of what should be covered in a sexual assault policy. A sexual assault policy that focuses only on what standards of proof would justify what kind of punishment does so at the neglect of the victims it is meant to protect. Victims of assault may need many things other than a procedure that might eventually punish their attackers. And many of the things universities can do to support alleged victims are non-punitive, and so do not require at all a high standard of proof. (I don't punish Shen by letting Paksima work in a different group, or referring her to medical services, based only on her allegation.) So another part of a university sexual assault policy—one even further disconnected from questions about law enforcement—should set out such non-punitive guidelines for how to care for alleged victims. A few such policies that come to mind are flexibility about classroom assignments, an ability to make changes to living arrangements, and access to counselling. No doubt there are many more things to add to this list.

Belief and Desire as Commitment

According to a common view, beliefs suffer a coherence constraint that desires do not. If I believe that p, then I'm very unlikely, at the very same time, to believe that not-p -- and if I do, that's a clear rational failing. But desiring various contradictory things is commonplace.

I don't want to dispute that the English statement of the common view just given can often express a truth. But I think it's a mistake to infer from this that there's something interestingly different between the natures of belief and desire. The words 'belief' and 'desire' are used loosely to refer to a few different kinds of things. And the ones that are of most interest in a lot of philosophy, I think, are structurally much more similar than the common view would lead one to think.

Particular Beliefs and Belief-Desire Psychology

Let us suppose that Dmitri knows how to sing the "Il balen" cadenza from Verdi's Il Trovatore.

There's a debate about whether Dmitri's knowing how to sing the cadenza amounts to knowing some proposition. According to 'intellectualists', knowing how to X just is (to an approximation), knowing, for some w, that w is a way to X. I don't mean to weigh in on that debate just now, but one of the moves in it is relevant for an issue concerning imagination, which is my current research topic du jour. The move is, on its face, an argument against the thesis that knowing how is knowing that -- it argues that in some cases in which know-how is clearly present, the relevant know-that is not present, because the requisite beliefs are absent or even disbelieved. For example, Dmitri may, consistent with his knowing how to sing the cadenza, have entirely erroneous beliefs about how he does it. Maybe he thinks that he clenches his abdominal muscles, when what he really does is expand his ribcage. He thinks that he opens his mouth widely, but what he actually does is lift his soft palate. The way he sings the cadenza is by expanding his ribcage and lifting his soft palate, but he doesn't know that, because he doesn't believe it. Charles Wallace offers a version of this argument. (This was brought to my attention in a forthcoming paper by my new colleague Ephraim Glick.)

Justification and Action

Fantl and McGrath argue that the combination of the following two views is problematic:

(JJ) If you are justified in believing that p, then p is warranted enough to justify you in phi-ing, for any phi. (Quoted from p. 99)

(Moderate Externalism about Justification) Justification does not supervene on the subject's internal states. In particular, external properties like reliability and Gettierizedness can make a difference in whether one is justified in a particular belief. (Paraphrased from p. 107)

Fantl and McGrath argue that (JJ) implies that 'purist fallibilism' about justification cannot be true. Now as I wrote a little while ago, I don't really buy into the notion of purism. And to be honest, I have some problems with the notion of fallibilism, too -- I'll try to write them up sometime soon. But set all that aside. The basic idea is that, if you accept (JJ), then you think that there might be two subjects that differ only in, for example, how important p is to each subject, such that one is justified in believing that p and the other is not. I guess I think that's right, although I'm thinking of things in a way different from the way Fantl and McGrath do.

Fantl and McGrath think that people who accept this and are also moderate externalists (hereafter 'externalists') "commit themselves to counterintuitive claims about action." First, Fantl and McGrath observe the familiar point that externalists think there could be intrinsic duplicates who differ in their justification facts; externalists, therefore they face the New Evil Demon problem. That's familiar stuff, and, as Fantl and McGrath say, there are many possible responses. But they think things get worse once you also accept (JJ). They write:

Moderate externalists who accept JJ not only have to say that two subjects who differ only in how reliable they are can differ in what they are justified in believing. They also have to say that the subjects can differ in what they are justified in doing. This is counterintuitive. (108)

It's not really clear to me that this is a counterintuitive verdict. But more to the point, I just don't see why Fantl and McGrath think externalists who accept JJ are thereby committed to it. They don't, as far as I can see, explain why they think this result should obtain. It plainly doesn't follow in any direct way from externalism and JJ; externalism says that external properties can influence belief-justification facts, and JJ gives one link between belief-justification and action-justification, but it's just nowhere near strong enough to imply, as Fantl and McGrath seem to think it implies, that external properties can shift action-justification facts.

Take subject LOW who is justified in believing p, and for whom p justifies Xing. Externalists are committed to the possibility, in at least some cases, of another subject, HIGH, intrinsically identical to LOW, who is not justified in believing p. Fantl and McGrath seem to think that externalists are committed by (JJ) to think it possible, consistent with these stipulations, that HIGH is not justified in Xing, but (JJ) just doesn't get them anywhere near that commitment. Indeed, (JJ) is silent about HIGH. This principle tells you about what happens when a subject is justified in believing p; it entails nothing about what happens when a subject is not justified in believing p. For all (JJ) says, p may justify HIGH in Xing, too. (Consider this coherent principle that entails (JJ): If anyone intrinsically identical to you is justified in believing p, then p is warranted enough to justify you in phi-ing, for any phi.)

Suppose we considered a stronger, biconditional, principle:

(JJ*) If and only if you are justified in believing that p, then p is warranted enough to justify you in phi-ing, for any phi.

I don't know whether (JJ*) is plausible or not; it's strictly stronger than the principle Fantl and McGrath defend. It gets around the problem I just raised for their charge against the externalist. But even (JJ*) isn't strong enough to deliver an entailment from externalism to a difference in what actions are justified between LOW and HIGH. Externalism and (JJ*) commit one to the verdict that p cannot justify HIGH in Xing, even though it can justify LOW in Xing. That's a far cry from the stated claim that nothing justifies HIGH in Xing. And I just don't see any plausible argument that this could be the case. It may be, for all (JJ*) says, that HIGH and LOW must be  justified in performing all the same actions, but that they have divergent propositions justifying those same actions. (The plausible way to develop this line, I think, is that HIGH's reasons are a proper subset of LOW's.)

So I don't think that externalists who like (JJ), or even those who accept (JJ*), are committed to the allegedly counterintuitive claims about action that Fantl and McGrath charge.