#BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life

37 Pages Posted: 4 May 2020

Date Written: May 4, 2020

Abstract

The presumption of innocence and #BelieveWomen both embody compelling considerations, and we may wonder how to reconcile them. My project does not aim to reconcile the positions, but rather, it is prior to it. My goal in this paper is to better explicate the claims that underlie both #BelieveWomen and the presumption of innocence in law and life, as well as to identify instances in which cross-pollination, between our everyday evaluations and the legal system, is contaminating our thinking.

First, I begin with #BelieveWomen and sort through various ways to interpret this demand (though my survey is not exhaustive). I spend additional time on one particular interpretation, an understanding that ties a cry for trust to a non-reductionist position with respect to the justification for believing testimony — that is, the idea that we have reason to believe someone, and are justified in so doing, just on her say-so. Although it is not my contention that this view is superior to other understandings, I believe it has received less attention in the literature and thus warrants additional examination. Next, I demonstrate how complicated our calculations are in life. Then, I turn to law. Here, I show how the various interpretations of #BelieveWomen raise distinct legal questions, but also note that flat footed understandings of this demand have created confusions. I suggest the law may meet the demands of #BelieveWomen through a corrective of the kind proposed by Miranda Fricker, evidentiary instructions, and (potentially by) alterations of the burden of proof, but that full belief may be too much to ask in this context. That is, law may be unable to accommodate a demand that we believe women, though it may be able to treat them respectfully as epistemic agents. In making this claim, I reject that increasing one’s credence in light of testimony “counts” as believing someone.

Second, I look at the presumption of innocence, noting that under the Supreme Court’s jurisprudence it amounts to no more than the requirement that in a criminal trial, the prosecution must prove its case beyond a reasonable doubt. Additionally, following Larry Laudan, I endorse the view that the presumption in law is simply the claim that a juror has no evidence. But that is not what we want in life. The questions we want to ask in life are (1) what do we owe each other and (2) when there are contested factual situations, what is the default position. The presumption of innocence rhetoric assumes the answers to these questions.

Suggested Citation

Ferzan, Kimberly Kessler, #BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life (May 4, 2020). forthcoming NOMOS: Truth and Evidence ; Virginia Public Law and Legal Theory Research Paper No. 2020-39. Available at SSRN: https://ssrn.com/abstract=3592545

Kimberly Kessler Ferzan (Contact Author)

University of Virginia, School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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