CPE as a Knowledge-Attribution Account of Pragmatic Encroachment

CPE is a knowledge-attribution account of pragmatic encroachment, whereas SPE is a knowledge-possession account of pragmatic encroachment. In “Distinguishing Knowledge Possession and Knowledge Attribution: The Difference Metaphilosophy Makes,” Kristie Dotson clarifies the differences between a knowledge-possession account and a knowledge-attribution account:

Notably, KP accounts and KA accounts differ significantly in their aims, construction, and possible extensions. KP accounts are ideal theories, which are not “susceptible to [empirical] proof,” nor are they about “actual circumstances of S knowing p” (477). KA accounts are “absolutely about the powers of discrimination between whether one knows (or can know) or does not know (or cannot know)” (477). KA accounts assess real-world knowledge-attribution using the resources of the theory itself to explain actual circumstances of knowing (478). In this way, a KA account can be assessed for how well it can track complex, interrelated features of real-world knowledge-attribution. A KA theorist can test their theory in this feedback loop between the theory of knowledge-attribution and actual practices of knowledge-attribution.

I introduce CPE as a KA account to explain that real-world knowledge-attribution includes constructed cases of pragmatic encroachment whereby third-person attributors are empowered to deny a subject's knowledge-claim on the basis of the subject's constructed practical stakes, an extra-epistemic condition that encroaches on knowledge-attribution. I will not suggest that this theory of pragmatic encroachment should be adjusted into a KP account to substantiate a normative relationship between knowledge and pragmatics. Rather, I argue that to suggest that pragmatic encroachment describes a normative relationship between knowledge and pragmatics is to endorse structural epistemic disparity. The disparity may be challenging to identify, however, given the KA/KP methodological difference between CPE and SPE, so I begin here.

As Dotson argues, KA accounts should attend to what she calls relational dependence of knowledge-attribution, which “refers to how deeply contingent KAs are on the relations between the attributor, knower, social/political milieu, material circumstances, and mechanisms of attribution” (478). Mechanisms of attribution are clarified as referring “to what features of the context an attributor might cite for triggers of a given attribution of knowledge, whether those triggers are real or imagined” (478). Although Dotson points to a significant error in Jason Stanley's use of an unmodified KP account to assess real-world knowledge-attribution (Stanley Reference Stanley2015), her critique is also illuminating for the general SPE debate.

Pragmatic Encroachment is a Disparate Failure-of-Knowledge-Attribution Problem

Significantly, the SPE theorist's signature move from a description of pragmatic encroachment as a neutral problem represented by how “ordinary speakers” use “know” to a normative KP account of pragmatic encroachment does not attend to the relational dependence of knowledge-attribution. SPE theorists, inspired by Keith DeRose's hypothetical bank cases, neglect the relational dependence of knowledge-attribution in idealizing the general, hypothetical exemplar cases of “ordinary speakers” to challenge traditional, invariantist KP accounts of knowledge (DeRose Reference DeRose1992). For instance, Stanley builds his challenge based on intuitions sparked by the hypothetical bank cases. John Hawthorne builds his challenge on hypothetical winning lottery ticket cases (Hawthorne Reference Hawthorne2004; Stanley Reference Stanley2005). And Jeremy Fantl and Matthew McGrath build their case from intuitions about a hypothetical Fox News story (Fantl and McGrath Reference Fantl and McGrath2009). They explain pragmatic encroachment as a neutral, ordinary, and apolitical problem that occurs simply when subjects put knowledge to work in their lives. In abstracting away from the question “whether one would attribute certain knowledge capacities to some S with respect to some p” when S has high practical stakes, to a KP account that asks, “does some S know some p,” SPE theorists idealize an apolitical, power-neutral relationship between real-world attributors, subjects, and mechanisms of attribution. The “ordinary speaker's intuition” about hypothetical exemplar cases is the springboard from which the transition to a normative theory of knowledge is based. SPE theorists ignore the real-world, relational dependence of knowledge-attribution in shifting away from a question of whether a real-world attributor would attribute knowledge to a particular subject in relation to their practical stakes to an idealized, normative account of whether a subject should be ascribed knowledge considering their practical stakes.

Hence, there is a direction-of-fit problem for SPE accounts. SPE theorists argue that traditional KP accounts cannot explain real-world KA cases of pragmatic encroachment, then idealize this presumably neutral epistemological problem into a KP account. They err both in arguing that traditional KP accounts do not fit real-world KA—they are not designed to—and in arguing that real-world KA is a KP problem. Thus, I am highlighting that SPE theorists mistake a failure-of-knowledge-attribution problem as a failure-to-know problem in their endeavor to substantiate pragmatic encroachment as a normative, KP account of knowledge. This happens because they build neutrality into their theories of real-world pragmatic encroachment in presuming that pragmatic encroachment organically materializes as a neutral epistemological problem in the world. By ignoring the contingent, nonneutral relations of real-world knowledge-attribution and idealizing the presumed neutral activity of real-world knowledge-attribution, SPE theorists use a skewed account of real-world pragmatic encroachment to posit a thicker relationship between knowledge and pragmatics than previously considered by nonpragmatist theories of knowledge, traditional invariantist KP accounts. In making this methodological error, SPE theorists mistake a failure-of-knowledge-attribution problem in real-world cases of pragmatic encroachment as an ideal model of the normative relationship between knowledge and pragmatics. This subtle error means that nonneutral denials of subjects’ knowledge claims on the basis of subjects’ constructed practical stakes are idealized as subjects’ failures to know in light of heightened practical stakes.

However, I introduce constructed CPE as a KA account of real-world failures-of-knowledge-attribution constructed by nonneutral world arrangements. More specifically, I claim that tracking real-world, third-person denials of subjects’ knowledge-claims requires parsing out “the relations between the attributor, knower, social/political milieu, material circumstances, and mechanisms of attribution” (Dotson Reference Dotson2018, 478). As a knowledge-attribution account of pragmatic encroachment that attends to the relational dependence of knowledge-attribution, CPE will highlight how nonneutral world arrangements disparately produce pragmatic encroachment as a failure-of-knowledge-attribution problem for marginalized knowers. This theory of pragmatic encroachment accounts for sociopolitical differences in how third-person attributors are empowered to deny differently situated subjects’ knowledge-claims and how differently situated subjects’ practical stakes are constructed by nonneutral world arrangements.

I agree with SPE theorists that attributors do attribute knowledge and deny knowledge based on whether some proposition is actionable for some subject, but I maintain that this is constructed by nonneutral world arrangements that empower attributors to act as arbitrators of subjects’ knowledge-claims. Notably, I suggest that insofar as third-person knowledge-attribution has real, material consequences that limit some subjects’ ability to participate in some epistemic communities as knowers, CPE illuminates a serious problem. Subjects can have a strong epistemic position in relation to “p” such that they know, but a third-person attributor can deny this in light of pragmatic concerns. Hence, rather than arguing that sociopolitically marginalized people's knowledge-claims are particularly at risk of seemingly “coming and going” or being lost in nonneutral practical environments (as follows from SPE), I contend that there exists a disparate nonneutral epistemological problem whereby various third-person attributors have power to deny subjects’ knowledge-possession in failing to attribute knowledge to a subject with high constructed practical stakes.Footnote ⁴ This unequally impacts various subjects.

Differently situated subjects have different constructed practical stakes that encroach on attributions or denials of knowledge. Subjects with “more at stake” are expected to meet higher epistemic standards for knowledge-attribution of some proposition than those with “less at stake.” This describes a structural relationship between knowledge-attribution and constructed practical stakes that guarantees disparity whereby the expectation or demand flows from the real-world function of knowledge-attribution—not an error on the part of an individual attributor. Subjects are expected to meet higher epistemic standards for knowledge-attribution than other subjects with less at stake given the very purpose of the role of knowledge-attributors to attribute or deny differently situated subjects’ knowledge-claims on the basis of how constructed practical stakes constitute an extra-epistemic condition on knowledge. In this way, individual attributors do not simply make an error in often denying knowledge of subjects with higher stakes but are fulfilling the role of attributors as adjudicators of knowledge by assessing subjects’ knowledge-claims with regard for subjects’ constructed practical stakes in their practical environment. There is an inherent disparity, then, built into how attributors attribute and deny subjects’ knowledge-claims that is the result of a structural relationship between knowledge-attribution and constructed practical stakes. By structural relationship between knowledge-attribution and constructed practical stakes, I mean an epistemological arrangement whereby there is a designated role for attributors of knowledge within an epistemic community to affirm or deny subjects’ knowledge-claims with regard to subjects’ constructed practical stakes.Footnote ⁵ Thus, CPE is a methodologically different account of pragmatic encroachment that aims to illuminate a disparate structural problem that is both sociopolitical and epistemological.

DA Graveley, the Defense, and High Stakes

First, consider the district attorney's argument that Kizer knowingly acted with criminal intent in the case. District Attorney Michael Graveley does not dispute that Volar committed felony sex crimes against Kizer and other teen and preteen Black girls. Graveley was involved in the ongoing police investigation of Volar, who was “arrested and charged with child enticement, second-degree sexual assault of a child, and using a computer to facilitate a child sex crime on Feb. 22, 2018” (Branigin Reference Branigin2020). The police also seized videotapes of some of Volar's assaults of Kizer and other girls prior to his death (Smith Reference Smith2020). Hence, Graveley argues that Kizer committed a premeditated murder with the goal of car theft, thus the affirmative defense afforded to victims of sex trafficking does not apply in this case. He cites inconsistency in Kizer's testimonies to police and journalists as well as Kizer's text messages and social media posts about the incident. Further, he is quoted in The New York Times as saying, “permitting vigilante justice, which is the narrative from some seeking dismissal, is a highly subjective, slippery slope” (Fortin Reference Fortin2020). Graveley, then, argues that the judge should deny Kizer's knowledge of danger because Kizer was not at risk of experiencing additional danger on the night in question—as if Volar's likelihood to inflict violence was zero or negligible that night because Graveley can later postulate a possible motive for Kizer—and there is too much at stake for future applications of the affirmative defense law. He is able to construct an interpretation of Kizer's knowledge on the basis of the stakes of the case, which are ultimately not about Kizer's epistemic position or the credibility of her testimonies of violence. He assigns the weight (or, said otherwise, the burden) of her own stakes as an accused survivor and the stakes of an infinite number of hypothetical future accused survivors to argue both that Kizer is not the type of survivor whom the law is intended to protect and that Kizer's alleged actions are not legally protected by the affirmative defense law. The DA argues that Kizer's alleged actions are not protected by the affirmative defense law because they were not the direct result of violence, but of a “vigilante” premeditated intent. Thus, his argument is that Kizer knowingly acted with criminal intent on the night in question and the affirmative defense should not apply to her (nor to future accused survivors whom Kizer represents in this case).

Next, consider the defense attorneys’ argument that Kizer knowingly acted in self-defense in the case. Defense Attorneys Carl Johnson, Jennifer Bias, and Larisa Benitez-Morgan counter the DA's argument that Kizer knowingly acted with criminal intent by arguing that Kizer acted in self-defense as a victim of sex trafficking and was a minor when she first met Volar. They argue that the affirmative defense should be available to Kizer for these reasons (Contrera Reference Contrera2019; Branigin Reference Branigin2020; Contrera Reference Contrera2020; Fortin Reference Fortin2020; Smith Reference Smith2020). Benitez-Morgan is quoted in Anne Branigin's report for The Root as stating that “[Chyrstul] was a child, and I think we need to keep sight of that” (Branigin Reference Branigin2020). The defense's argumentative strategy is to highlight Kizer's status as a minor victim in order to convince the judge that her stakes as a minor explain her knowledge of danger that forced her to act in self-defense on the night in question, so her alleged actions are the direct result of violence protected by the law. Although the DA's argument does not hinge on whether the judge should believe that Kizer is a child survivor—he concedes this point—the defense grounds their argument on Kizer's youth to argue that Kizer is the type of survivor whom the law is intended to protect and thus the affirmative defense law should apply to her case. They are seeking to convince the judge that there is an unjust sociopolitical bias against Black youth such that adults tend to view Black children as adult-like or as older than they actually are. And there is an unjust sociopolitical bias against Black girls; specifically in this case, it is the adultification of Black girls that Monique Morris calls “age compression” in her book Pushout: The Criminalization of Black Girls in Schools (Morris Reference Morris2016). Hence, the defense grounds their argumentative strategy in exposing adultification as a sociopolitical bias to argue that Kizer knowingly acted in self-defense as a child victim of violence.

The DA's invention of criminal intent relies on the sociopolitical effectiveness of adultification to construct Kizer as an adultlike criminal based on “inconsistencies” in the testimonies of a child survivor, who must testify to police and other investigators who are gathering evidence to evaluate the extraordinary charges pressed against her. If he can convince the judge to view Kizer through adultification, then he can further convince the judge to disregard consideration for the extraordinary circumstances in which Kizer is expected to maintain consistent testimony. The DA does this to present Kizer as not the type of survivor whom the law was intended to protect, who are “real” child victims whose actions are legally protected by the affirmative defense, not so-called “vigilante” criminals. He is counting on the judge's adherence to a protected victim/unprotected criminal dichotomy to strengthen his case by citing ever-increasing constructed practical stakes of his production of Kizer as a “vigilante” survivor.

Important to note is that the DA's case against Kizer does not hinge merely on whether she is believed to be a child victim of sexual assault, but whether her knowledge-claim that “Volar's continuous violence was dangerous to her” is legally actionable under Wisconsin anti-sex-trafficking laws. He denies that Kizer can use her knowledge-claim as a basis for action for her in this case to claim that her alleged action was the direct result of trafficking. In this way, the DA can concede the point that he believes that Kizer is a survivor of sexual violence while arguing that she is not the type of survivor whose actions, the alleged crimes and the produced motive for the alleged crimes, are those that the affirmative defense should protect. The DA's argument against Kizer relies on how he can leverage constructed practical stakes of the case against Kizer to undermine her testimony of self-defense. The argument is at least a two-prong strategy that deploys both the epistemological failure-of-knowledge-attribution problem and the sociopolitical persuasiveness of adultification. The DA exercises his epistemic power to deny that Kizer's knowledge-claim is actionable for her considering the extraordinary constructed practical stakes of the case—Kizer as an accused survivor and as a representation of an infinite number of future possible accused survivors. He leans on the ability to leverage an extra-epistemic condition on knowledge to argue that the stakes are too high to grant that Kizer really acted on knowledge of danger. Adultification, then, is an important staple for the DA's invention of criminal intent to reframe Kizer's actions from those of a survivor knowingly responding to danger to those of a nonvictim criminal knowingly acting with criminal intent.

The DA presents a case against Kizer to the judge that denies Kizer's claim to know about her own experience of violence based on her constructed practical stakes in this legal context. The defense presents an anti-adultification, self-defense counterargument that hinges on convincing the judge that Kizer is a child victim who knowingly acted in self-defense, an affirmative defense for Kizer's alleged actions within the scope of the shield laws. Their counterargument pushes back against adultification, but it does not address how and why the DA has expanded and heightened the constructed stakes against Kizer to determine whether the affirmative defense is applicable. If the Wisconsin shield laws are designed to protect survivors who respond to sex trafficking with typically criminalizable acts, then why are hypothetical implications of other survivors who also fatally act in direct response to violence (self-defense) presented as a negative potential consequence of affirming Kizer's knowledge and self-defense? How does Kizer become responsible for weighing the potential consequences of her survival and that of an infinite number of possible potential others (whose experiences might also fall under the shield laws) in order to prove that she knowingly acted in self-defense? Because the DA is leveraging compounded constructed practical stakes against Kizer to contest her knowledge of her own experience of violence.

Volar's confirmed sexual violence as the core problem that sets everything in motion seemingly gets backgrounded, and constructed practical stakes are foregrounded as a problem for Kizer to overcome. A failure-of-knowledge-attribution problem is leveraged as a failure-to-know problem, introducing a nonaccidental epistemic burden for Kizer.Footnote ⁶ A nonaccidental epistemic burden is a burden to strengthen one's epistemic position in relation to some “p” despite having an adequate (or better) epistemic position in relation to some “p.” Kizer and her defense team have a skewed, uphill battle to wage to convince the judge that he should affirm Kizer's knowledge-claim given the heightened constructed practical stakes of the case against her. By undermining Kizer's ability to use her knowledge of Volar's ongoing violence as an actionable reason to defend herself, the DA requires that Kizer and her defense team produce more evidence and argumentation to support what Kizer already knows about her own experience of violence. Pragmatic encroachment as a failure-of-knowledge-attribution problem is a key prong of the district attorney's case to prosecute Kizer.

It's a Tilted Competition When Attributors Compete

The district attorney and defense team present competing arguments to deny or attribute Kizer's knowledge-claim based on different assessments of the constructed practical stakes for Kizer as a survivor of sexual violence under Wisconsin law. As key third-party attributors in a criminal case where the subject, Kizer, has extraordinarily high practical stakes, their roles as attributors whose arguments are used to adjudicate the case has significant, material consequences. A SPE account of pragmatic encroachment that posits that neutral world arrangements give rise to pragmatic encroachment is insufficient to explain why there are competing assessments, why the denial of Kizer's knowledge prevails, and the significant, material consequences of pragmatic encroachment in this case. I will use a summarizing schematic to clarify this point. Let S refer to Chrystul Kizer, p to “Randall Volar's violence put S in danger,” c to Kizer's context, t to the time of the alleged murder, arson, and theft, and @ to a broad range of permissible actions. Thus, Kizer's contested testimony may be represented as:

Moreover, at least two pairs of arguments presented by the defense and DA either affirm or deny CT. The affirmation of CT is represented in Pair A:

The denial of CT is represented in the Pair B:

The defense attorneys argue that given Kizer's stakes as a child victim of Volar's ongoing violence at the time in question, (1) and (2) apply. Pair A is an affirmation of CT that represents the defense's argument that Kizer knowingly acted in self-defense, thus her alleged actions are permissible as a direct result of trafficking and should be ruled as legally protected by an affirmative defense. In contrast, the DA argues that given Kizer's stakes as a “vigilante” survivor at the time in question and as a representative of an infinite number of possible future “vigilante” survivors, turning S into S + S^1…∞, (1*) and (2*) apply. Pair B is a denial of CT that represents the DA's argument to reject Kizer's knowledge-claim and to reject p as an actionable reason for Kizer coupled with an argument that Kizer's actions are not permissible actions that are the direct result of trafficking, thus not legally protected by an affirmative defense. The DA ultimately argues for prosecution of premeditated crimes based on his claim that Kizer knowingly acted with criminal intent, given (1*) and (2*). The pairs highlight that Kizer's practical stakes are in dispute for knowledge-attribution. Ultimately, the judge in the case weighed the arguments made in Pair A and Pair B and ruled that the affirmative defense is not available to Kizer given Pair B. While Kizer awaits an appeal decision, the world arrangements that construct her criminalization and the rejection of her testimonies of survival as an actionable defense are anything but neutral. How pragmatic encroachment shows up as an epistemological problem in this case does not extend from the so-called neutral activity (or function) of knowledge-attribution.

Thus, an SPE account of pragmatic encroachment based on a neutral world arrangement is ill-equipped to explain the disputed practical stakes in this case. Recall that SPE accounts posit that how knowledge-attribution happens is a socially and politically neutral arrangement in which attributors are generally accurately assessing the stakes of subjects’ practical environments to attribute or deny knowledge. SPE theorists argue that pragmatic encroachment extends from the presumed socially and politically neutral human activity of “putting knowledge to work,” or said otherwise, determining whether some p is actionable for some S in c at t. It is evident in Kizer's case, however, that the third-person attributors are nonneutrally designated epistemic powers to determine whether p is actionable for Kizer as a survivor of sexual violence. They are empowered to do so per their professional roles as state actors in a legal case and their sociopolitical roles as law enforcement. The evaluation of Kizer's testimony does not extend merely from a neutral activity of acting on knowledge, but rather from a criminal (in)justice system with state actors who are empowered to evaluate whether her testimony is actionable under a set of laws and within sociopolitical interpretations of permissible responses to sexual violence. The judge in the case acts as the presiding third-person attributor who denies CT, “I knew that p in c at t, therefore I acted on p in c at t,” based on the constructed practical stakes for Kizer in this practical environment. He is a state-appointed, third-person attributor whose need for the information is to rule on whether her actions are criminalizable, a historically contingent, socially, and politically constructed concept. This third-person case of pragmatic encroachment highlights that real-world pragmatic encroachment is constructed by nonneutral world arrangements.

SPE is a Seriously Jarring Approach to Real-World Pragmatic Encroachment

An account of pragmatic encroachment that holds that third-person pragmatic encroachment merely neutrally arises from the function of knowledge-attribution cannot robustly explain 1) why there are competing assessments of CT that hinge on how Kizer's survivorhood factors into the case, 2) which assessment of CT is accurately tracking Kizer's knowledge, and 3) why any given assessment of CT rises above another. Furthermore, an SPE account that maintains neutral world arrangements gives rise to third-person pragmatic encroachment but acknowledges that subjects from sociopolitically marginalized groups are most likely to have heightened practical stakes cannot robustly explain these questions. To illustrate this, consider the following analysis of Kizer's third-person case of pragmatic encroachment from an SPE framework.

Applying an SPE framework to pragmatic encroachment to Kizer's case, the epistemological problem arises from Kizer's need to use p in her decision calculus to decide how to respond to her encounter with Volar at t. The SPE theorist would stipulate that Kizer generally has the same epistemic position in relation to p as prior to t. This means if she knew p prior to t, then she knows p at t and if she did not know p prior to t, then, she does not know p at t. Any third-person attributor would consider her practical environment at t and prior to t to be extraordinarily demanding and assess that the practical stakes for knowledge are considerable. Kizer is in a high-stakes situation, so the standard for knowledge is exceptionally high. Given the extraordinary, heightened stakes, the SPE third-person attributor would assess that whether Kizer knows p such that it is actionable for her practical reasoning requires an extraordinary epistemic position in relation to p. SPE third-person attributors are most likely to suggest that Kizer did not know p and p is not actionable for her as they tend to deny knowledge in high-stakes cases. In this neutral-world-arrangements approach to pragmatic encroachment, an attributor can affirm that Kizer is a survivor of sexual violence, while denying that she knows p in c at t, like Pair B. Because knowledge-attribution is about what is actionable for Kizer in c at t, her survivorhood can be weighed as relevant only insofar as it explains her heightened practical stakes. On an SPE account, Kizer loses knowledge of her own experience of danger in c at t and her own experiences of sexual violence more broadly. The third-person attributor will deny CT.

The SPE approach, then, can predict the argument made by the DA and affirmed by the judge in the case. It also suggests that this argument is an accurate assessment of whether Kizer knows p in c at t given her practical stakes. This is a problem. SPE can acknowledge that some subjects are more likely to have high practical stakes than others and that pragmatic encroachment has particularly awful sociopolitical implications for those subjects, while maintaining that real-world pragmatic encroachment simply is an epistemological dilemma whereby the pragmatic encroaches on knowledge. They can say, “That's how knowledge works, no matter how tragic this is for some subjects. And third-person attributors in Kizer's case are merely assessing whether they can certify that p is actionable in the stakes-situations under consideration.” Now, that is jarring. The SPE theorist suggests that the practical stakes are such that one can fail to know about their own experiences.

An SPE approach to Kizer's case can claim that this is an extraordinary third-person case of pragmatic encroachment in which neutral world arrangements are such that Kizer fails to know about her own experiences. The SPE theorist can argue that the epistemological problem in the case is that Kizer's extraordinary practical stakes significantly encroach on her ability to know p in this practical environment. In this way, they can distinguish the fact that knowledge is the kind of thing that a subject can act on and the fact that there are extraordinary stakes. They can acknowledge that there are heightened practical stakes for marginalized subjects and maintain that the pragmatist condition on knowledge means marginalized subjects must meet high epistemic standards to know in a marginalizing practical environment. Neutral world arrangements give rise to pragmatic encroachment, even if nonneutral world arrangements unevenly distribute practical stakes, so marginalized subjects can fail to know in some practical environments. Thus, an SPE theorist can argue that the DA is accurately assessing the epistemology of Kizer's stakes-situation in argument Pair B, even if the stakes-situation is in a particularly awful marginalizing practical environment. There is a “neutral” epistemological problem: when stakes are high, putting knowledge to work is difficult in the case in which (1*) and (2*), therefore the epistemology of the case does not support the application of an affirmative defense. But this argument for a failure-to-know problem is available only because SPE theorists disregard the relational dependence of knowledge-attribution and how nonneutral world arrangements empower third-person attributors to deny a subject's knowledge-claim. As a KP account, an SPE approach to Kizer's case is methodologically flawed such that the approach will misidentify a failure-of-knowledge-attribution problem as a failure-to-know problem.

A CPE theory of pragmatic encroachment as a nonneutral epistemological problem is necessary to track the relations of power that empower the DA to attribute or deny Kizer's knowledge-claim and to use this epistemic authority to produce an alternative assessment of stakes based on his denial of Kizer's knowledge-claim. The DA is not a neutrally designated third party with a bird's-eye view of Kizer's knowledge-possession who merely passively attributes or denies knowledge according to the epistemology of the case. He is an attorney empowered by the state to wield significant epistemic authority over whether Kizer's knowledge-claim is actionable for her in this legal context. And as the DA in this case he exercises the power of the state's criminal justice system to press charges against Kizer based on his assessment of her constructed practical stakes. The DA is an active, nonneutrally designated third-person attributor whose ability to materially impact Kizer with his attribution or denial of her knowledge-claim initiates the extraordinary pragmatic encroachment in the case.Footnote ⁷ The defense attorneys come in as additional third-person attributors to defend Kizer with a competing assessment of Kizer's constructed practical stakes because that is their designated role as state agents. The judge presides over this case of pragmatic encroachment to rule on how Kizer's constructed practical stakes encroach on what she knows. Although Kizer attributes knowledge to herself in this extraordinary practical environment, her epistemic authority over her own knowledge is trumped by the epistemic authority of these different third-person attributors. They wield the power of knowledge-attribution in this case of pragmatic encroachment. There is not a failure-to-know problem, but a failure-to-attribute-knowledge problem.

The judge and DA fail to attribute knowledge of danger to Kizer based on her practical stakes, which are constructed by the very practical environment that empowers them to do so. This is Pair B. Although they are arguably biased for their adultification of Kizer, their failure to attribute knowledge of danger to Kizer does not hinge on their individual bias as fallible attributors. The failure-of-knowledge-attribution problem is a structural problem that flows from the real-world function of knowledge-attributors to certify that subjects’ knowledge-claims are actionable. Their designated third-person knowledge-attribution roles wield epistemic power over Kizer's first-person knowledge-attribution within an epistemological system that relies on knowledge-verification via third-person attributors. The DA and judge can pose the question, “how can you be sure that Volar's alleged danger constitutes violence along the spectrum of sexual violence on the night in question; there is too much at stake in claiming that your alleged actions are the direct result of sex trafficking,” because they are empowered to leverage a structural relationship between knowledge-attribution and constructed practical stakes built into the very function of legal knowledge-attribution.

Recall that Kizer's case is a contested argument on whether her knowledge of danger is actionable for her such that the Wisconsin affirmative defense should be available to legally protect her as a survivor of sexual violence. The DA and judge deny CT while acknowledging that Kizer is a survivor of sexual violence because the case is heavily influenced by how Kizer's contested constructed practical stakes in relation to what she knew on the night in question indicate whether the affirmative defense is applicable. This is the backgrounded move in SPE accounts of pragmatic encroachment that posit that neutral world arrangements give rise to pragmatic encroachment. As third-person attributors, the DA and judge can claim that the problem at issue in the case is merely a neutral epistemological problem compounded by unfortunate circumstances. They are empowered to effectively table the issue that Kizer is a youth survivor of sexual violence by backgrounding the relations of power that designates them as attributors of knowledge who do not have unmediated access to Kizer's actual knowledge-possession. The DA can then pursue the argument that Kizer knowingly acted with criminal intent as a “vigilante” survivor, who also represents an infinite number of possible future “vigilante” survivors. He builds this case for prosecution by arguing that social media posts are like unmediated access to what Kizer knew on the night in question. In this way, he produces a practical environment in which the stakes of the case are ever-increasingly skewed against Kizer who must now prove that she did know that she was in danger and acted on this knowledge.

Thus, Kizer and her attorneys and advocates are structurally forced to overcome a nonaccidental epistemic burden to prove that she is the kind of survivor whom the affirmative defense should protect because she did know p. A nonaccidental epistemic burden, again, is a burden to strengthen one's epistemic position in relation to some “p” despite having an adequate (or better) epistemic position in relation to some “p.” The burden in Kizer's case is to increasingly find evidence, testimony, and argumentation that strengthens the claim that Kizer knowingly acted in self-defense as an ongoing survivor of sex trafficking. The failure of third-person knowledge-attribution and the subsequent nonaccidental epistemic burden in this case are constructed by nonneutral world arrangements that are problematically skewed to support Pair B over Pair A. Further, if the Wisconsin shield laws are the only or primary legal grounding that the defense can build their case on, then the case illustrates a larger problem for other similarly situated survivors like Kizer. Because if the law was not intended to protect survivors like Kizer and is not applicable to survivors like Kizer, then there is a whole group of survivors, likely disproportionately survivors of color, that district attorneys can leverage constructed practical stakes against to justify their criminalization. Constructed pragmatic encroachment, then, is a seriously concerning epistemological problem for survivors of sexual violence, more than may first appear.