Gardiner, Georgi. The She Said, He Said Paradox and the Proof Paradox
2021, In Zachary Hoskins and Jon Robson (eds.), The Social Epistemology of Legal Trials. Routledge, pp. 124–143.
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Added by: Clotilde Torregrossa, Contributed by: Georgi GardinerAbstract:
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.Comment: This can be paired with an essay on the proof paradox in legal epistemology. Gardiner has a "cheat sheet" on her website for teaching this essay.
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