The ‘She Said, He Said’ Paradox and the Proof Paradox 1

Abstract

This chapter 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 chapter, 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.