How do you see the issue of consent being addressed by such that the complexity of innocence until proven guilty and the safeguards the community nowadays, in light of the #metoo movement’s high-profile and success in recent years?
Since #metoo, there has been more acknowledgement that consent is not clear, is not well understood – that so many women have been subjected to non-consensual sex without being able to disclose or talk about it for fear of being called a ‘liar’ or worse.
This disclosing of sexual assault and harassment has come some way since the #metoo movement. The media has been very involved in developing the encouragement of such disclosures. However, the general community message of shame and guilt aimed at women has not changed within the community at large.
Furthermore, and significantly, the legal system has been slow in developing a system that acknowledges rape myths and systems that are gendered. If we encourage women to speak out, so too must we have a legal system that acknowledges that victims of sexual assault are looking to it for justice.
What has been the most surprising response you have had to your novel?
For me, the most surprising thing is how the legal systems around the world have embraced and taken it on board. It felt like a bold play that challenged those who worked in the system and who had previously not examined the legal frameworks they worked within.
I expected a backlash and therefore I was scrupulous when I wrote the story of the same system explained from a defence perspective. Then I took that same system and showed how it is experienced for someone telling the truth, yet subject to the constraints, community myths and gendered mannerisms of the law.
I was surprised and thrilled that the legal systems of the UK, Australia, the US and other non-adversarial jurisdictions around Europe and beyond, were able to engage with the play, see it as a legal education tool for judges and barristers, litigators and law reform makers, and then proceed to change aspects of the law with the play.
No one dares dream that a piece of art can do that; I like to think my colleagues in the legal system, when confronted with something that steers a path through systemic unfairness, are keen to correct such a thing.
From the feedback you have received about the novel and play, just how far do you think the legal profession has progressed in terms of addressing sexual harassment and male entitlement?
I think awareness is the first movement, and I have had the most incredible feedback from members of the legal profession at every single level.
Judges in Northern Ireland now must watch a video of the play before sitting on sexual assault cases; police have viewed the video of the play and have used it in training and ‘seeing’ how they have gotten it wrong; it is being adopted as a judge education tool. But aside from those obvious changes, what I have observed is the members of the community who have always considered this as something that ‘just happens to women’ in the workplace or even in relationships, as being outraged and reassessing their own experiences.
I think the myths about male sexuality having to be accommodated, and that somehow women bring undesirable sexual advances upon themselves, is being scrutinised for the myth it is. Women lawyers are coming together to discuss ways they can effect change within the profession and the system itself, and are even offering models for legislation.
You portray your female character, Tessa, as a cross-examination game player who uses well-worn tools of timing and acting to move in for the kill – can, or should, empathy play a role in the defence of a sexual assault case?
This is a brilliant question – does a defence lawyer go to the line when cross-examining on any particular case in order to go as far within the law that they can for their client?
If the system is fair and objective, the answer would be yes. But the system does not protect complainants, is gendered in its assumption of the events that took place, and has a history of lack of understanding of the emotional process a woman goes through in sexual assault. When such matters are in court, the rules must change to protect a complainant.
There is surely a balancing act to protect the accused and consider them innocent until proven guilty, but if we cannot achieve the balance then another system for prosecuting and litigating sexual assault and harassment cases must be considered.
A specialist sexual assault court, a complainant-centred legal framework that is separate to courts, or other ways of seeking an outcome. At the moment, the entire system – from disclosure right through to outcome – are gendered and damaging for a complainant.
Is your character Tessa based on someone you knew when practising law, or on a conglomeration of many people’s traits? And does a woman still need to display a tough exterior to be successful in the law today?
When I was a solicitor, I took at least six sexual assault statements a week (after a full week in court each day). Each of those was just to obtain funds for sexual assault counselling. My clients were 25 years and under – and for years I heard the same thing over and over again.
The same horror and shame, the same ‘I froze and couldn’t believe this was happening’, the same anxiety and terror, the same psychological torment. Not to mention some of the horrific physical accounts. Tessa is not only a conglomeration of those stories, it is also the stories of people I know. Serious, career-minded women, brilliant and professional; my friends and relatives. It is across all classes and races.
As a lawyer today, I think women are still judged on various aspects of ‘toughness’ in order to be successful. If you walk into court on any given day, most women lawyers still have lowered their voice in order to speak in court, have had to dress in a manner that generally conforms.
We all know as women lawyers that the ‘shrill, hysterical’ woman trope is one that is to be avoided at all costs, because we have listened to years of men complaining of women who are ’emotional’ and further. The message is clear.
But, surprisingly, the law is not an objective scientific system – it is about people and their lives, and no matter how often those who practise within the legal system talk about objectivity, they are trying to force a human experience into a system that has been defined by generations and generations of white, middle-aged, generally financially privileged men.
All of our laws and the ways we practise them are tied up with those assumptions, whether we acknowledge that or not.
What advice would you give to young women entering the law today?
Be yourself, have the back of other women, speak out. Expect more, fight for more, be part of the change that will follow – aim to be at the top of your profession and, when you have that power, use it to enact change.
Do you think those who have had a verdict go against them should be able to address the court, as Tessa did? (As those who are permitted to provide impact statements can, after a conviction?)
I can’t speak to that. I believe we need to rethink the entire system. I also think the legal system owes it to those who fail in a sexual assault case to make it clear this in no way means they were lying or that it didn’t happen – all it means is the case was not proven to the very high standard of beyond reasonable doubt.
I think if people really understood that, there would be less shame and damage done to those who cannot reach the standard. And, let’s face it, in sexual assault cases the complainant is set up to fail on that front. How rarely is there evidence that is more than ‘he said/she said’? And with such cases I can see why women do not take it further.
The community is not inclined to believe women and their stories. We have all been educated about the ‘tease’ and have somehow subsumed the idea that once something begins there is no stopping it. Consent must be obtained and continued to be given – it is not a big ask to expect someone to say, ‘Is this ok?’ and to read some fairly obvious signs throughout the sexual experience. Or at least to look for them and ask.
How long do you think it will take before, as you write, everyone can’t not see?
I wonder!
A total community wave of change is required. We need it at home, schools and beyond. We need to interrogate the way we all think, talk about sexual assault and communicate about women.
We need to consider the way we raise our sons and our daughters. We need to want to make a difference for them and the generations after them.
