“We must continue to condemn the scourge of sexual misconduct on our campuses,” Education Secretary Betsy DeVos proclaimed in her address at George Mason University. “We can do a better job of making sure the handling of complaints is fair and accurate.”
On September 7, Education Secretary Betsy DeVos announced that she would rewrite Obama-era guidelines for handling sexual assault on college campuses. According to her, they infringed on the rights of the accused. Her plans have come under sharp criticism by sexual assault advocates, who argue that she draws a statistically unfounded equivalence between the number of individuals who are falsely accused of sexual assault, and the number of victims of sexual assault who are silenced. They warn that her revisions to Obama-era guidelines will result in fewer victims of sexual assault coming forward and fewer convictions of assaulters.
The next day, Jeannie Suk Gersen, a professor of law at Harvard, defended DeVos’ policy in an article for The New Yorker.
“The idea that an adjudicatory process should be fair to both sides is about as basic as any a facet of American law as can be,” she wrote.
Fairness to both sides is a principle of American law, and rightfully so. But it is worth considering who this principle assumes we believe. On their face, DeVos’ words seem well-intentioned, and perhaps they are, but they fail to account for a key issue—namely, the imbalance of the perceived believability of the accuser and the accused. And that imbalance can tip in favor of either.
Epistemology, the theory of knowledge, evaluates the beliefs of an individual. Social epistemology, by contrast, assumes that social environments influence the production of knowledge. Social epistemologists study the effects of social interactions and systems on the beliefs of individuals and groups.
The adjudication of law depends on standards of believability: what is considered “beyond reasonable doubt,” who is judged to be a reliable witness, what counts as a “preponderance of evidence.” How these standards of believability arise from a specific social context—whether that social context is defined as narrowly as a jury or as broadly as a country—is a question for social epistemologists.
So is Devos’ proposed policy. In advocating “fairness to both sides,” Devos seems to want to level the playing field between accuser and accused. Presumably, her motivation for doing so is to ensure that the correct account of the alleged assault is believed.
That motivation is admirable. But it relies on an assumption: that the accounts of the accused and the accuser are equally likely to be believed. In reality, though, the believability of the accused and the believability of the accuser are often unequal in the eyes of juries and the public. That imbalance jeopardizes justice, if justice in the criminal justice system is the epistemological victory of the factually correct account.
The interaction of two theories of feminist social epistemology—standpoint theory and epistemic injustice—can help explain why DeVos’ assumption is misguided.
According to feminist standpoint theory, the perspectives of marginalized people are most likely to furnish new knowledge about the world. Because they contribute knowledge that does not conform to the status quo, the theory supposes that their accounts are most likely to be objective.
By an objective account of the world, standpoint theorists mean an account which a neutral third party would take to be accurate. Including the perspective of a person typically left out of conversation generates a more comprehensive and therefore objective account of the world. “World” here refers to social systems—their internal structure and how they fit together. The marginalized individual occupies the “outsider-within” position, which gives them a unique perspective on the structure and functioning of social systems that is unavailable to “insiders.”
Discussions about social relations and power, standpoint theorists argue, should begin with the perspectives of marginalized individuals. In an ideal world, perhaps—but how feasible is that goal when the perspectives are preemptively marginalized along with the people?
Not very, according to the theory of epistemic injustice. The theory holds that the prioritization of marginalized perspectives will not and cannot happen organically.
In Epistemic Injustice: Power and Ethics of Knowing, philosopher Miranda Fricker defines epistemic injustice as a way in which someone is wronged specifically in their capacity as a knower. She names two kinds: testimonial injustice, which occurs when prejudices cause people to “give a deflated level of credibility to a speaker’s word,” and hermeneutical injustice—when individuals are deprived of the social resources to make sense of their experience. Social resources can range from the knowledge that one’s experience is shared to a linguistic label for an experience.
Epistemic injustice has at least two implications for standpoint theory. The first: The prejudices that lead people to deem some individuals more believable than others are the same prejudices that marginalize individuals generally. Centering the perspectives of marginalized individuals in discussions does not guarantee that those individuals’ accounts will be believed.
The second: Standpoint theorists appear to assume that the marginalized individuals in question have overcome hermeneutical injustice. Given that individuals only began to articulate experiences of sexual harassment as such in the 1960s, the assumption seems naive.
Taken together, feminist standpoint theory and the concept of epistemic injustice illuminate a vicious cycle of knowledge production. We systematically disbelieve the accounts that are most likely to give us an objective view of the world. Even more worrisome is the thought that some of those accounts are impossible to believe because they are never uttered.
The claim that feminist epistemologists propound—namely, that we are less likely to believe certain accounts due to the social positions of the individuals who give them—informs our understanding of the handling of sexual assault on college campuses. It immediately casts doubt on DeVos’ assumption that “fairness to both sides” will result in the victory of the factually correct account. When one side is advantaged from the start, “fairness to both sides” preserves that advantage.
One objection to DeVos’ statement is that accusers are considered less believable than the accused, and that a principle of “fairness to both sides” will disadvantage those who make accusations by preserving the advantage of the accused.
That analysis is certainly attractive, and probably true in many cases. The majority of accusers are women, which, given the widespread awareness of the terms “gaslighting” and “mansplaining,” makes that objection more attractive. And the fact that many victims of assault do not disclose their assault because they think they will not be believed adds further support.
I am deeply sympathetic to the claim that standards of believability are often gendered and sexualized, and that these standards often disadvantage victims of sexual assault or harassment. And I believe that the high ratio of silenced victims to false accusations is a compelling reason to subscribe to the objection that DeVos’ policies will disadvantage the accuser, at least most of the time.
I am skeptical, however, that standards of believability do not ever disadvantage those accused of sexual assault. It would be a mistake to cast the aforementioned objection as a universal truth, as some well-meaning advocates do.
Transgender people and people of color are accused of sexual assault. The very existence of transgender people is often disbelieved, and social conservatives have cited sexual assault as a reason to deny transgender people bathroom rights.
The claim that a white woman accuser is less likely to be believed than her alleged black assailant is historically inaccurate. In the 1890s, Ida B. Wells famously exposed how false accusations were systematically used to justify the lynching of young black men in the U.S. Given the demographics of campus assault cases, this should give us significant pause. As journalist Emily Yoffe noted in an article for The Atlantic, black men are overrepresented in sexual assault accusations.
Recognizing that standards of believability can also disadvantage those accused of sexual assault should not dissolve our commitment to correcting the ways we disadvantage victims of assault. It need not undermine the statistics advanced by sexual assault advocates that show the high rates of silencing relative to false accusing.
But it does mean that objections to DeVos’ statements about “fairness to both sides” should not be founded on reductionist claims about who we always believe or should always believe in sexual assault cases. We tend to disbelieve women, people of color, poor people, queer and trans people. People of all these identities are assaulted in alarmingly high numbers. But at one point or another, people of these identities have been accused of sexual assault, too.
What, then, is a better objection to DeVos’ statements? Given that both accusers and the accused can face epistemic injustice, and given the apparent difficulty of quantifying and comparing these injustices, is “fairness to both sides” not a reasonable approach?
It is worth reiterating that by requiring a higher standard of evidence, “fairness to both sides” could discourage victims of assault from coming forward—particularly those who know they are considered less believable than their assailant.
“Fairness” also will protect those accused of sexual assault by demanding a higher standard of evidence from their accusers. This is true for those with high “believability ratings,” so to speak, and those with low ones. Such protection could let a rapist stay enrolled in school; it could also prevent, as Aaron Sibarium ‘18 notes in his column for the Yale Daily News, “To Kill-A-Mockingbird style witch hunts.”
In short, the effect of “fairness to both sides” in a trial depends on who—guilty or innocent, accuser or accused—is considered more believable. But DeVos’ claim that “fairness to both sides” will actually provide “fairness to both sides” rests on the unspoken assumption that the accuser and the accused are equally believable. Given that believability is often constructed on social hierarchies, her assumption overlooks the very social systems which perpetuate sexual assault.
Sexual assault is about power more than sex. It is an attempt to exert control through the reproduction of gendered, sexualized, and racialized hierarchies. DeVos’ assumption that “fairness to both sides” is feasible ignores the hierarchies which prompt sexual assault. This oversight is not just a conceptual problem; it is a political one. Sexual assault trials are post-hoc, not preventative. Preventing sexual assault requires interrogating, negotiating, and dismantling the various social hierarchies which enable it.
DeVos has called sexual assault “atrocious,” condemning it as an act of “personal weakness” that should be punished by the law. To be sure, assailants are responsible for their actions, and should be held accountable for them.
But holding assailants responsible for their actions is not mutually exclusive with acknowledging that there are social hierarchies which influence and amplify the incidence of sexual assault. DeVos’ approach falls short in this critical way: it lacks any consideration of the social systems which contribute to the recurrence of sexual assault.
By avoiding such consideration, DeVos has signaled a retreat from the proactive attempts to reduce the incidence of sexual assault. And yet, she acknowledged in her address at George Mason University that proactive steps are necessary.
“We can do a better job of preventing misconduct through education rather than reacting after lives have already been ruined,” she said.
The impulse to prevent misconduct through education is correct and admirable. But preventing misconduct through education requires engaging critically with the social hierarchies that encourage sexual misconduct.
“I wish this subject didn’t need to be discussed at all,” DeVos said.
Unfortunately, it does—and she has not yet begun.
Katie Coyne ‘20 is a sophomore in Trumbull College.