This post (very slightly edited) is cross-posted from my personal blog as part of UBC Sexual Assault Awareness Month.

Earlier this month I wrote an op-ed in the Vancouver Sun about university sexual assault policies. One of the things I tried to do there was to draw a connection between some of the questions in that area and my own research into knowledge and contextualism. I tried to make the case that a kind of contextualist fallacy lies behind some attitudes about university sexual assault policies. I still think that’s plausible and interesting, although there are certainly competing possible explanations. But one tweet I received in response definitely commits the contextualist fallacy.

The contextualist fallacy is the failure to attend to the context-sensitivity of language, allowing for the construction of a superficially apparently-valid argument that is in fact fallacious. For example, the word ‘now’ is context-sensitive. Sometimes when it is used, it refers to 9:47 am Monday, Jan 18. (In fact, that’s the time that word refers to when I utter it right now.) Here is a true sentence:

1. It is before 10:00 Monday right now.

Actually, although it is before 10:00, it’s not very far before 10:00, when I have to teach. So I’d better come back and finish this post later.

OK, I’m back now. Class was good, thanks for asking. What time is it? It’s 11:03. so this is true:

2. It is after 10:00 Monday right now.

Now, where was I? Ah yes, the contextualist fallacy. Here’s a clear, albeit silly, example of the contextualist fallacy:

Sentence (1) is true, and sentence (2) is also true, therefore sometimes it is both before and after 10:00.

This argument is obviously fallacious. The word ‘now’ in (1) had a different referent than did the same word in (2). I’ve been arguing for a while, in a series of papers and a forthcoming book, for contextualism about knowledge ascriptions, which is the view that ‘knows’, like ‘now’, does different things in different conversational contexts. Roughly speaking, when we’re in conversational contexts where extremely momentous decisions are being made, or where serious possibilities of error are taken seriously, sentences using ‘knows’ make logically stronger claims.

For example, suppose I am considering crossing a rope bridge. A few feet underneath the rope bridge is a large, solid wooden platform. The bridge looks like it’s in pretty good shape. I know a bit about bridges and the strength of ropes, and have no particular reason to suspect this bridge. This may be true under the circumstances:

3. I know that the bridge can hold my weight.

But if the wooden platform is removed, revealing a vast precipice below, even if my evidence and attitude about the bridge are exactly the same, given the high stakes, (4) might be true:

4. I don’t know that the bridge can hold my weight.

The tension between (3) and (4) is a genuine epistemological puzzle; contextualism assimilates the tension to the contextualist fallacy.

In my Sun piece, I suggested that the same thing is going on with discussions about standards of proof in cases of alleged sexual assault. Suppose three people witness a student rape another student, and they tell me about it. Then (5) can be true:

5. I know that student X sexually assaulted a student.

In general, when three people see something happen and they tell me about it, I can come to know that it happened. But although my evidence suffices for ‘knowledge’ relative to ordinary contexts, it might not do so in contexts involving much higher standards of proof. In a courtroom context, for example, where X is literally on trial for criminal sexual assault, I think there’s a case to be made that (6) is true.

6. I don’t know that student X sexually assaulted a student.

Certainly I can’t testify that X sexually assaulted a student; I didn’t see it happen, I only heard about it from others. They didn’t give me an affidavit; they haven’t been cross-examined. All of them were drinking that night; some of them are unwilling to testify in court. Under the circumstances, there may not be evidence sufficient to convict X. So X does not go to jail.

None of this means I don’t know, relative to the less strict, non-courtroom context, that X sexually assaulted a student. Outside the courtroom, (5) is still true. (Remember that “the court finds the defendant not guilty” is a misnomer. The court found that there was room for reasonable doubt, and that the defendant could not be convicted. This is not at all the same as being innocent!) The lack of a criminal conviction means that X doesn’t go to jail; it doesn’t mean that I don’t know about the sexual assault, or that I or my university should pretend that nothing happened. Although there’s something tempting about the skeptical argument—there wasn’t evidence sufficient to convict; so we can’t know that X is guilty; so it would be unfair to do anything about X’s alleged behaviour—I think it commits the contextualist fallacy.

I don’t ordinarily draw attention to arguments like this one, but I received this tweet in response to my suggestion:

what about the rights of the accused? If there’s not enough evidence, how can you justify punishing somebody?

I think that this argument clearly demonstrates the contextualist fallacy. “If there’s not enough evidence, how can you justify acting?” ‘Enough’, like ‘now’, is obviously a context-sensitive term. Do I have enough money? Enough for what? I have enough money to buy a new suit, but I don’t have enough money to buy a new house. Here’s a terrible argument: Jonathan would need a million dollars to buy a new house. He has less than a million dollars; so he doesn’t have enough money. And obviously he shouldn’t buy a new suit if he doesn’t have enough money. So he shouldn’t buy a new suit. Maybe I shouldn’t buy a new suit—arguably I have enough suits already—but the fact that I don’t have enough money to buy a new house definitely isn’t why. In exactly the same way, lacking enough evidence to put a rapist in jail clearly doesn’t mean that one lacks enough evidence to respond in other ways. The fact that some people are tempted to react in this way confirms my suspicion that the contextualist fallacy is part of the problem in thinking through these issues.