The “She Said, He Said” Paradox and the Proof Paradox

In Zachary Hoskins and Jon Robson (ed.), Truth and Trial (forthcoming)
Download Edit this record How to cite View on PhilPapers
This essay introduces the ‘she said, he said’ paradox for Title IX investigations. ‘She said, he said’ cases are accusations of rape, followed by denials, with no further significant case-specific evidence available to the evaluator. In such cases, usually the accusation is true. Title IX investigations adjudicate sexual misconduct accusations in US educational institutions; I address whether they should be governed by the ‘preponderance of the evidence’ standard of proof or the higher ‘clear and convincing evidence’ standard. Orthodoxy holds that the ‘preponderance’ standard is satisfied if the evidence adduced renders the litigated claim more likely than not. On this view, I argue, ‘she said, he said’ cases satisfy the ‘preponderance’ standard. But this consequence conflicts with plausible liberal and feminist claims. In this essay I contrast the ‘she said, he said’ paradox with legal epistemology’s proof paradox. I explain how both paradoxes arise from the distinction between individualised and non-individualised evidence, and I critically evaluate responses to the ‘she said, he said’ paradox.
(categorize this paper)
PhilPapers/Archive ID
Upload history
Archival date: 2020-06-06
View other versions
Added to PP index

Total views
267 ( #24,097 of 2,449,140 )

Recent downloads (6 months)
98 ( #5,859 of 2,449,140 )

How can I increase my downloads?

Downloads since first upload
This graph includes both downloads from PhilArchive and clicks on external links on PhilPapers.