Servizio Comunitario di Informazione in materia di Ricerca e Sviluppo - CORDIS

Final Report Summary - GENERALIZATIONS (Generalizations in the Law)

In the first period of the grant I followed a bottom-up approach and developed my theory on the use of generalizations in court by researching specific issues in which generalizations are used to determine facts about a specific individual. I deliberately focused on relatively complicated facts: causation and consent.
The first paper I published was a case study of the use of quantitative generalizations to prove the material fact of causation in criminal courts. In R v Clark, a mother was wrongfully convicted of murdering both her babies, in part on statistics that purported to show that the probability of two SIDS deaths in a family similar to the Clarks’ was 1 in 73 million. Drawing on the theory of contrastive explanation from the Philosophy of Science, the paper argues that it was wrong to use these statistics because using them properly would require another piece of evidence which is clearly objectionable: quantitative generalizations on the rate of smothering among mothers who are similar to Clark. This paper shows why Clark should serve as a warning against any attempt to prove the fact of causation by using quantitative generalizations about the rate of potential exonerating causes.
I then moved to examine the way lack of consent to sexual relations is proved, with a particular focus on the difference between coercive and deceptive sexual relations. I was attracted to this topic after the Israeli Supreme Court upheld the conviction of Kashur, a married man and an Arab-Israeli, of rape after he represented himself to the complainant as a Jewish bachelor interested in a meaningful romantic relationship. I published a paper in Hebrew which criticises this decision and the Israeli jurisprudence on this question more generally. By highlighting the difference between the generalizations in use, I showed that it is difficult to avoid basing such convictions on controversial value-judgments about the information on which the complainant should have based her decision. This paper was awarded the Cegla Prize for the Best Article of Young Legal Scholar in Hebrew. I then deepened and expanded my research on the difference between coercion and deception in sexual relations. Another paper I recently submitted for publication argues that to the extent that deceptive sexual relations should be criminalized, this should be done by using an offence distinct from and less grave than the offence applicable to coercive sexual relations.
In the second period of the grant I sought to generalize my approach to the use of generalization in legal fact-finding. For more than a year I focused on consolidating my ideas into a single paper, which was recently accepted for publication by the Oxford Journal of Legal Studies. In addition I have been working on a rejoinder to Professor Federico Picinali (LSE), who wrote a detailed and critical response to my argument, to be published in the International Journal of Evidence and Proof. I have also continued to apply my theory to specific issues. At the beginning of the second period I finalised the work I began in the first period on consent to sexual relations, after my paper had been accepted for publication in the Canadian Journal of Law and Jurisprudence. And towards the end of the second period I drafted a paper which argues against racial profiling, which I submitted for publication a few weeks after my grant ended.
In “Freedom and Generalisation” I have suggested a novel solution to the problem of generalisation. While both inside and outside the courtroom, we commonly infer facts about individuals using generalizations about how similar people tend to behave in similar situations, some types of generalization seem, nevertheless, intuitively objectionable (e.g. using the high rate of crimes involving illegal firearms in a certain neighbourhood to support the conviction of an individual resident in a crime involving an illegal firearm). My paper connects the use of generalization in legal fact-finding to the issue of free will: using some types of generalization requires presupposing that the individual’s behaviour was determined by a certain causal factor which renders her behaviour unfree. Yet the individual could be culpable of the alleged offence only if the exact opposite is presupposed: that she was free to determine her own behaviour. Using these generalizations in criminal trials is objectionable because it involves inconsistent presuppositions about the individual’s behaviour.
In “Against Racial Profiling” I extended this argument to searching. Unlike existing objections to racial profiling, which focus on its social costs, my paper has challenged its rationality. I have argued that racial profiling requires contradicting presuppositions about the suspect’s behaviour being conducted freely. On the one hand I have shown that racial profiling presupposes that the individual suspect’s behaviour is unfree because it takes this behaviour to be determined by his race, age and gender, none of which is within his control. On the other hand I have explained why, similarly to criminal trials, search practices ought also to presuppose that the individual is free to determine her own behaviour.
The grant assisted me in creating new contacts with European and Israeli scholars and institutes (such as the Max Planck Institute for Foreign and International Criminal Law in Freiburg). I was also offered an opportunity to teach at Oxford, where I gave a series of lectures entitled “Statistical Generalizations: Truth, Personal Autonomy and Fair Process”. I have continued to teach there for three consecutive years, a part of their BCL degree, and gained some valuable ideas from discussing these issues with the students who took the class. My research on sexual offences, conducted mainly in the first period of the grant, has led me to offer a new seminar on sexual offences, which is highly over-subscribed and received very positive feedback.
My host institution has shown its long-term commitment to supporting my research and assisting me in securing a permanent position in the faculty. Firstly, I was awarded a term’s research leave in 2013. Secondly, I was given a large degree of independence to choose which topic to research. Lastly, I was not overburdened with teaching and administrative commitments in an explicit attempt to assist me in securing a permanent position in our faculty.

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