Lessons in Empathy as Learnt by a Young, Female Criminal Lawyer
I did so much as blink and yet another festive season has gone by. Sometimes when I zone out in between periods of furious drafting of submissions, I can still hear Mariah Carey’s nonpareil version of “All I Want for Christmas Is You” playing somewhere in the corners of my mind. In fact, Chinese New Year just went by too, and in between Mariah, I periodically hear “Mei tiao da jie xiao xiang…” but I digress.
This festive period was different from the last – after two years of living with the ever-persistent COVID-19 and selective social isolation, I visited relatives and met up with pandemic-induced long-lost friends (only in groups of five, of course). Apart from the Singaporean special “When are you getting married / pregnant / your BTO?” line of questioning, when they found out I was a criminal lawyer, I was asked at least one of the following:
“Don’t you feel like you’re helping the bad guy get off scot-free?”
“How do you defend someone you know is guilty?”
“Isn’t it scary to deal with criminals?”
However, two years into practice as a 28-year-old female criminal lawyer, the invariable question I receive is “As a woman defending molesters and rapists, how do you sleep at night?”
It is a fair question, especially in light of the fact that sexual crimes make up at least 40 per cent of the work my team does, and my answer is simple. Nonetheless, it is an answer I have deliberated long and hard over and yes, it has kept me up at night before but not anymore.
Now, the first thing I, along with generations of criminal lawyers, wished more people understood is that very often, our job is not to secure an acquittal and the release of a dangerous person back onto the streets at all costs. We are not Annalise Keating and we are definitely not helping anyone get away with murder. More often than not, our job is to put our client’s best foot forward and ensure that they receive a fair judgment or sentence from a court of law. Make no mistake though – as my boss would often say – we are trial lawyers and we will fight for you but of course, we do not fight for the sake of it.
Eight years ago, when I was only a pre-law intern (coincidentally, shadowing my present boss Mr Shashi Nathan), I was sitting in Court 26 of the old State Courts with him waiting for a Mention when a young foreign national was called into the dock. I did not know what his offences were, but he was clearly unrepresented. The Judge asked him what he intended to do as he stood in the dock literally quaking in his boots. There was a long silence before he spoke into the mic, stuttering and voice-breaking, pleading for leniency from the Court stating that he only did what he did because he needed money and if he went to jail for a long time, he would lose his income and his wife and infant son back home would go hungry. The Judge looked up from his Bench at the man and said in a kind voice that he understood his predicament but there was not much the Judge could personally do at this point and advised him to find a lawyer.
I do not know what happened to that young man after that day but that was my first lesson as a clueless and impressionable pre-law intern. Every person accused of a crime, no matter how egregious or minor, and regardless of guilt, has a back story or explanation for what they did, and most of them have loved ones who would suffer as a result of their incarceration.
Fast forward to 2022 and I have sat across men who have been accused of rape and outrage of modesty numerous times in my two years of practice. Some come to my office meeting rooms with their family who rally around them and avow their innocence; others awaiting judgment in remand tell me that I am the first person who is not in the prison system they have spoken to for months. I listen to them tell their side of the story over and again and sometimes it changes with each visit. I listen to their explanations for their actions; some try to explain it away, others just need someone to understand. I listen to their fears and their tears and their regrets and at the heart of it, they are all human beings. Human beings who, just like you and I, have made mistakes and have done wrong against another. Even the most heinous criminals, I have found, are someone’s father, husband, brother, son and friend. I cannot help but think it could have been mine and if it were, I would want their lawyer to help them obtain the best outcome possible.
Having given the above spiel which I have perfected over the last Christmas and Chinese New Year season countless times, I can predict their next question and it is (almost) invariably “Yes, but what about the victim?”
Just because I am defending a sexual assailant does not mean I support sexual assault and just because I am a woman does not mean I cannot give a man accused of sexual assault the fair representation that he, as a human being in a civilised society, deserves.
You see, just because I advocate for a man accused of rape or outrage of modesty in a court of law does not mean I am trying to silence the complainant. Just because I believe my clients’ versions of events does not mean I disbelieve the complainants’. Just because I am defending a sexual assailant does not mean I support sexual assault and just because I am a woman does not mean I cannot give a man accused of sexual assault the fair representation that he, as a human being in a civilised society, deserves. I realised that once I stopped thinking and believing in such absolutisms, it made reconciling my job and my gender a lot easier.
Having said that, I’ll admit it isn’t always a walk in the park especially when part of the job involves hearing the harrowing details of a complainant’s account of what was probably the worst and most traumatic day of her life. No matter how much compartmentalising you do, there are moments when you feel your stomach twisting and you feel ounces of your empathy for your own client trickling away. When that happens, I remind myself that in any event, in a court of law, it does not matter what I, as defence counsel, feel, and that I have a duty to my clients to put forward their best defence or mitigation.
Putting aside empathy for the accused, I once asked Shashi how he manages to balance his duty to his client and the need to remain sensitive to a sexual assault complainant during cross-examination. Admittedly, while I am still a couple of years away from having to cross-examine a witness on my own, I cannot help but feel nervous for my inevitable first cross-examination of a sexual assault complainant. His response to my question is quite eloquently summed up in a Rice Media article dated 19 May 2019 where he was interviewed on the complexities of defending sex crime.1https://www.ricemedia.co/culture-people-top-criminal-lawyer-complexities-defending-sex-crime-singapore-shashi-nathan/ One, empathy is a crucial skill for any defence lawyer and the defence must be able to empathise with the complainant, their families, and the difficulties of being questioned in court after their ordeal. Two, empathy does not mean letting them off the hook; it simply involves treating them with fairness, civility, care and consideration.
Two years into criminal practice, albeit with a long road ahead and many lessons still to learn, the answer is easy to me. As Atticus Finch said in To Kill a Mockingbird, “You never really understand a person until you consider things from his point of view – until you climb into his skin and walk around in it”. Practice with empathy and while there will be many other things that keep you up at night, defending someone accused of a crime, no matter what it is, won’t be one of them.