Reasoning from background knowledge: Evaluating and explaining behaviour in Finnish rape judgments

Abstract

According to explanationist theories of evidence, fact-finders reason by evaluating the ‘goodness’ of different narratives that explain the evidence. One standard is external coherence: does the narrative fit with what the fact-finder knows or assumes about the world? This study uses qualitative content analysis to examine how District Court judges draw inferences directly from ‘background knowledge’ in 119 Finnish rape cases and how these inferences are contested by dissenting and appellate judges. The results show that especially the complainant's behaviour was frequently evaluated against behavioural scripts and other background beliefs. Outspoken reliance on rape myths was relatively rare, and myths were explicitly resisted as often as they were relied upon. Where judges used stereotypical behaviour to support the rape complainant's testimony, this reasoning could be explained by the search for optimum (explanatory) coherence or the Finnish legal principle that a rape complainant's testimony requires supporting evidence. Judges also used estimates of prior probabilities to inform their reasoning; few behaviours are impossible, but some actions are ‘more coherent’ with rape than with non-rape, or vice versa. Accruing the type of knowledge necessary (and usually unavailable) for probabilistic reasoning is therefore necessary also for explanationist reasoning.