Column

Empathy in the Law: Does the Robin Camp Inquiry Committee Recommendation Encourage a “Postempathy Era”?

What role should empathy have in a system of laws? What does an empathetic legal system look like?

In a recent article on the Robin Camp case, Brenda Cossman raised concerns about the Canadian Judicial Council Inquiry Committee recommendation that Justice Camp be removed from the bench. She raised, in particular, the concern that removing rather than educating Justice Camp facilitates a growing “post-empathy” culture:

I worry even more about the impulse to punish in light of the recent rise of a powerful backlash against any and all equality-seeking groups. We have moved into a new postempathy era, where more people are prepared to stand defiantly and unapologetically in favour of discrimination, sexism, and racism. I worry that we dismiss the possibility of education and move to punish those who are genuinely remorseful (“For Judge ‘knees together’ Camp: Education is Power”, Globe and Mail, December 1, 2016).

I am not entirely sure what Professor Cossman meant, but I think that her point is that the absence of empathy in those who seek to remove Justice Camp encourages by example the absence of empathy in those who “stand…in favour of discrimination, sexism, and racism”. Our own insufficient empathy creates and empowers the post-empathy culture, which in turn creates the very sexism and discrimination that we seek to prevent.

Not surprisingly given my role in initiating the Camp complaint, and my publicly stated support for the outcome, I disagree with Professor Cossman’s specific position on that matter. But I am nonetheless intrigued by her analysis, and I want to explore it further. Because I certainly agree with her underlying proposition: empathy matters. Indeed, I would argue that a legal system that fails to be empathetic fails to accomplish the moral function of legality and, specifically, respect for the dignity of those governed by laws. That is, it fails as law. But that then leads to the obvious follow-up: what does empathy require of law? What does empathy mean in a legal context?

The dictionary definition of empathy is the ability to understand and share the feelings of others (here). For the purposes of law, though, I think empathy requires something a bit more specific. I think it requires accounting for a person’s personal perspective on an event or experience – i.e., how they themselves experienced or perceived it – rather than considering only an external assessment of that event or experience – i.e., how it is perceived from an independent and impartial point of view. Empathy in law requires that our external assessments of a person’s behaviour consider and account for the personal perspective.

To use a non-law example, I might externally label the behaviour of the customer at a store as rude but if I consider the customer’s personal perspective, I will account for the bad day he’d had at work, the financial troubles that he can’t seem to escape from, and the fight he just had with his girlfriend. Doing so may not make the behaviour any less rude – any independent and impartial observer would judge his conduct to have been rude – but it does see and account for the full humanity of the customer, rather than reducing him only to the observation of his rudeness. And it may shift the external assessment – at least to allow for the possibility that even if what he did that day was rude, the customer is not a rude person. To be legitimate and accurate, my external assessment must account for the personal perspective of the person being judged.

In the case of Robin Camp, this sort of empathy requires considering what led him to act as he did during the Wagar trial, what experiences in his life might have explained his attitude to the complainant and the accused. It requires accounting for the ignorance or lack of education that may explain his antipathy to the law and his reliance on discredited myths and stereotypes. It also requires recognizing that Robin Camp is not only what he did during the Wagar trial. He is a human being, with a wife and a family who supported him during the proceedings, and professional colleagues who did so as well. He was said during the Inquiry Committee proceedings to have been an effective lawyer with a commitment to social justice. Empathy also requires seeing and appreciating the personal consequences to him not only of the potential removal from the bench, but from the international media storm that his conduct has generated.

The law systemically accounts for the personal perspective, most obviously in the procedures it affords to people whose conduct the law has put at issue. The information about Robin Camp in the prior paragraph arises from the testimony and evidence he presented during the CJC Inquiry Committee hearing. This is also true in criminal trials, particularly in relation to sentencing, where we systemically take into account factors that may shade or even shift how we assess or judge the person whose conduct is at issue. The system is structured to ensure that external assessments only occur after the personal context has been taken into account.

In law empathy also requires that we test accounts that other people or the state give about a person’s behaviour, particularly where those accounts are not independent or impartial. The law does not allow claims to be made about a party to a legal proceeding unless those claims can be proven in some way; it preserves respect for personal perspective by requiring that claims from outside that perspective be proven before they are treated as true. In the criminal context, we go so far as to assume that the external claims are false – that is, we presume the innocence of the accused – until those claims are established as true. Ironically enough, the cross-examination of witnesses in a criminal case, including a complainant in a sexual assault case, expresses this type of empathy. We recognize the personal perspective of an accused person by choosing not to believe accusations brought against that person until they have been properly proved, including by testing them through cross-examination.

The law requires that cross-examination be respectful and not abusive. A lawyer cannot demean or degrade a witness, because doing so would deny the personhood and dignity of a witness in order to preserve the personhood of an accused, and our system’s rules and procedures – our constitution – preclude that trade-off. But within that boundary, when a lawyer vigorously but respectfully cross-examines a witness, however difficult and even horrible that cross-examination is for the witness subject to it, she preserves the empathy necessary for the functioning of the legal system; she does not contravene or undermine it.

Empathy in law allows for the personal perspective to shift the external assessment of a person’s conduct as wrongful. We allow reasonable but mistaken belief in consent as a defence to a charge of sexual assault; the defence has an external element, in that it must be plausible when viewed from another point of view (the mistaken belief must be reasonable and the accused must have taken steps to ascertain consent). But it rests significantly on the personal perspective of the accused – because the defence necessarily contemplates that, if the conditions of the defence are satisfied, the accused may be acquitted based on his own erroneous belief. The mistaken personal belief precludes the external judgment that the accused committed sexual assault, even though the accused did in fact have unconsented to sexual contact with the victim.

There are, though, things that empathy in law does not require. Most of the time, a person’s own perspective does not alter how the law assesses the person’s behaviour. An unreasonable mistaken belief in consent, no matter how deeply held or believed, will not prevent an accused’s conviction for sexual assault. A person who deliberately and intentionally kills someone (i.e., commits murder) will not escape conviction and a life sentence because the person otherwise made positive contributions to the community, or because we can understand the weakness and jealousy that led to that event. We can read Othello or Macbeth and pity the tragic heroes because the plays reveal their personal perspectives – their weaknesses and vulnerability – but we still see them as wrongdoers. A properly functioning legal system will do the same. We empathize, but we still judge. The personal perspective has to be accounted for, and can shift the external point of view in some cases, but it does not eliminate the possibility or need for an independent and impartial external point of view.

In the case of Robin Camp, his personal perspective invites empathy and compassion, and allows for the possibility that he is more than what he did in Wagar. It is possible that with less serious misconduct a judge’s ignorance or apology would be sufficient to excuse his conduct. But on the information provided to them, the CJC Inquiry Committee could – as it did – determine that in this case, Justice Camp’s personal perspective did not alter its assessment of his conduct. It did not undo the identification of the injury to the administration of justice, to public confidence in the administration of justice, to the Wagar complainant or to the Wagar accused, which his behavior created. The question for the CJC Inquiry Committee – for the legal system – was not what consequence befits Robin Camp the man, as understood fully and with account for his humanity and personal perspective. The question was what consequence befitted the external assessment of his wrongdoing, an assessment reached after consideration of his personal perspective.

In my view, the Inquiry Committee was correct to answer that question with a recommendation for removal. Not because Robin Camp is a bad person. Not because his personal perspective is irrelevant or unworthy of consideration. It was considered. But because, independently and impartially assessed, the wrongs that his conduct created are fully and properly addressed only by that consequence. The consequence is not imposed in order to punish him, or to judge him unworthy (although of course personally it will feel that way to him). It is to preserve the administration of justice, confidence in the administration of justice, and to recognize the wrong done to the Wagar complainant, the accused, and ultimately the public. It is a hard consequence, but not a post-empathetic one.

Comments

  1. It’s not a post-empathy era it’s just that equality demands empathy. In order to recognize the equality or respect the dignity and humanity of another empathy must be present. The lack of empathy from those who would oppose or deny equality on whatever grounds has always been in existence, it is now only become more prominent because people have been given a medium that allows them to voice their fears without restraint. In order words, expressions that voice lack of empathy are no longer whispered. As long as any group feels that their privilege has to be shared (not even entirely denied) their opposition exposes the inequality that already existed and hence the lack of empathy that allows the denial of equality. Equality requires sharing and empathy – fair play.

  2. Hello Alice,

    I agree with you that the the correct decision and the decision that ought to have been made is the recommendation that Justice Camp be fired.

    Unfortunately, what wasn’t in the CJC’s mandate was to inquire into the circumstances of his appointment.

    Let’s leave it that I find it difficult (my careful adjective) to believe that the “educational deficiencies” (my neutral summary) which he admitted to, and which required “educational upgrading” (again my neutral summary), were entirely (my careful qualification) unknown to anyone who mattered in the appointment process before his appointment, such that there were no red flags for anyone who (1) ought to have been concerned and (2) what’s probably more important, was in a position to do anything about that concern.

    For what that speculation on my part is worth.

    At this point, an inquiry into what went wrong in the appointment process, even if were plausible, probably wouldn’t “name” any “names” who could be “punished” in any relevant way, and I suspect not even “shamed”. I’d like to be wrong, but I doubt it.

    Cheers,

    David

  3. I think empathy is a bunch of subjective nonsense that is just a subversive way of making the law turn out the way you want it to. I would argue, in fact, that excessive and misplaced empathy has made sexual assault law the mess it is today, in which a startling number of men, including very young men, are having their lives ruined by false accusations made either maliciously or for personal advancement – ‘sexual assault victim’ having become quite the cachet, a handy job qualification, almost an academic credential, and even a basis for appearing on the speaker circuit. I won’t name names, because I have some empathy even for these misguided souls.

    The mess is quite lucrative though. I was in a courtroom recently where no fewer than 7 paid adults spent a day picking apart what was no more than a typical bumbling first sexual encounter between two young people who could, absent rape hysteria and left to themselves, have cleared up their misunderstanding, or at least learned from it and moved on.

    Empathy has no place in law because it is selective, optional, subjective, and unenforceable. It creates blind spots in the law behind which prejudice and favouritism can escape scrutiny.

    The problem with empathy is that it never comes without its siamese twin: hatred. It’s like a hand mirror that bathes you in virtue when you look at your reflection in it, but beams hatred out its other side. Blinded by your own reflection, you can’t see the damage being done behind the mirror, partly because the mirror itself is in the way. It is always within your power to put the mirror down, but few people who are enjoying orgies of empathy ever do.

    I think the better term here might be humanity, not empathy. I see humanity as the capacity to perceive and respect feelings in others, and it is the advance of humanity that achieved a lot of improvement in the law in the 20th century. Empathy is a capacity to participate in the feelings of others, and unless practiced with care it is actually destructive of its subject because sometimes the empathizer actually displaces the subject’s own feelings and takes over their decision-making – ie, misses the boundary between empathizing and acting. I see that as having happened to the Camp complainant: there she was, testifying at an inquiry into the judge. Did she make that happen? No. She did not. She might have, if left to her own resources, or she might not, but we’ll never know, because people who empathized with her a bit too much took over and made it happen.

    Even if empathy were an unmixed good thing, the law is not supposed to empathize. Because empathy draws you into a person, in an adversarial situation it by default creates an “other” with whom you do not empathize. So if the law is empathetic, it is also biased. Which sexual assault law now is. It used to be biased one way, and now it is biased in the other.

    The misguided application of empathy in sexual assault law is why the entire landscape of law is now polarized between classic doctrine and “empathetic” law, and thus, paradoxically, inflamed by hatred. This is destroying the law: the first casualty of the Robin Camp fiasco was an accused’s right to a fair trial, as pointed out by Clayton Rice, QC: https://www.claytonrice.com/justice-robin-camp-and-the-right-to-a-fair-trial/. Justice Camp’s decision already having been overturned, there was nothing to be gained in law, and much to be lost, by writing about it before the retrial took place.

    And yes, a great deal of what was unleashed on Justice Camp was hatred. I think that is what Professor Cossman was getting at in her article, but she maybe can’t, or doesn’t want to, come out and say that. For the record, I disagree with a lot of what Professor Cossman wrote, but at least she had the courage to question the image in the mirror.

    When you go so far as to even put down the mirror, the original R. v. Wagar decision looks a lot different. Here’s how it looked to Clary Jaxon: https://www.youtube.com/watch?v=jbObqf35_5Q (video with link to text) and to Diana Davison: https://www.youtube.com/watch?v=13Z3p0jHVHw (video), neither one burdened by excessive empathy for the complainant, and thus able to see clearly the humanity of all involved.

    Both of them feel that it is the Justice Camp firestorm, and not the original decision, that is a discredit to the law. I agree, and focussed on that in my own blog post: http://ctjester.blogspot.ca/2016/10/camp-and-decline-of-judicial-system.html.

    If anyone wants to exercise a little empathy in law these days, though, spare a thought for the second trial judge, due to issue a verdict on January 31st. Talk about a chilly climate in which to try to render a fair decision.

  4. Thanks Alice.

    Empathy indeed matters. It matters within a system of laws precisely because those laws will frequently need to be applied to facts about the states of mind of individuals; and triers of fact–whether judges or juries–require the application of their full empathic abilities (as unencumbered as possible by learned prejudice) in order to correctly determine those states of mind as a matter of fact.

  5. Coincidently, the Globe & Mail today features a short review – http://www.theglobeandmail.com/opinion/the-empathy-trap/article33412535/ – of a new book entitled “Against Empathy”.

  6. Just came across this on Psyblog as well, showing that empathy leads to aggression:
    http://www.spring.org.uk/2014/10/empathy-can-sometimes-motivate-this-dark-unjustified-behaviour.php

  7. When I was growing up, the word “empathy” really wasn’t used much, if at all in my reading or discourse. “Sympathy” was the popular term for the ability that was supposed to allow you to breach the isolation we all find ourselves in. I don’t suggest that anything heavy hangs on that matter of usage — this debate is not about verbal distinctions or definitions. But I do find it interesting to see the recent growth of “empathy” as the go-to word for . . . EQ, shall we say? Have a look at the Google n-gram for “sympathy” and “empathy” to see the shift: https://goo.gl/APp9OL

    The base line, surely, is that none of us can know what another feels or thinks (and, yes, it’s paradoxical: by that very token I can’t know that). One can guess or suppose, which is to say indulge in projection. That doesn’t mean we would be “wrong” in our projected feelings or thoughts — merely that we should always be aware that we’re guessing and doing so out of our own (usually unconscious) wishes, interests, biases, and so forth. If, as a judge, or as a judge of judges, we’re to exercise “empathy,” we must make our constructs as explicit as possible.

    I doubt that sympathy or empathy “leads” in any sensible way to aggression or behaviour that is deleterious — at least no more so than “rationcination” or “imagining” might.

Leave a Reply

(Your email address will not be published or distributed)