Toronto Criminal Lawyer on Empathy at Sentencing

Blog — What is empathy? Why does it matter?

Empathy is a powerful emotion. It can drive us to tears. It can bring us together. It's absence can drive us apart. In Court, a chronic lack of empathy can be a serious aggravating factor.

After reading my blog on apologies, a client told me "I'd like to apologize but I'm not good with the empathy thing."

Empathy is the ability to appreciate, understand, and accept how another person feels; in other words, to put yourself in another's shoes, to feel his or her joys and sorrows as if they were your own. Empathy is about feeling, not intellect. Achieving empathy is not like solving a puzzle.

Countless times I have witnessed clients experience empathy, overcome with the realization of just how the other person felt at the time, or feels now. That shared feeling can be a terrible burden. Often, there is resistance. Just as denial can accompany grief as a coping mechanism, denial can creep in when asking yourself:  "What did I do to hurt her, how did she feel at the time, and how does she feel now?"

Experiencing empathy can be an important part of the rehabilitative process. I recently listened to a BBC podcast on Treating the Sex Offender. A sex offender at HMP Whatton, a prison for sex offenders, spoke of the pain of waking up every morning, not because he was in prison, but because he woke every morning staring into his victim's eyes knowing her pain. If you can feel and remember the hurt you've caused others, it will help you from re-offending.

When taking responsibility, I encourage my clients to start sentences with the letter "I." The path to empathy is the opposite. Now it's time to step into the victim's shoes. Don't focus on what she said to you, how she got it all started, or your misfortune in being charged. You can't undo the past. But you can take responsibility and show your victims that you understand the hurt you caused.

Now it's time to write.

Starting with the words "to my lawyer," write a short paragraph about what you did. Identify the boundaries violated, those hurt, and those who will continue to suffer. Then answer these questions:

1. How did the victims feel at the time? What were they thinking about me and my behaviour?

2. How do they feel now? How do my past actions affect their present feelings?

3. As a result of my actions, how will the victims continue to suffer?

If I could voice my victims' feelings, what words would I use about how they have suffered, how they now feel, and the challenges ahead?

Don't get stalled with sympathy. Sympathy is tied to pity, an emotion about the distress of another. If you say to a friend who failed his exam, "I'm sorry you didn't do so well," you are expressing sympathy. If you instead say, "I'm sorry, I know how much you wanted to ace that exam," you are sharing a feeling. You are identifying with the other person's emotions.

Showing empathy is about effective communication. If you intend to present an in-Court apology, you need to prepare. Read my blog on the four corners of an apology, find some quiet time, and turn off the electronics. Write it, leave it for 48 hours, and then polish it. Every word must be yours. Own what you want to say. Only then can you speak in Court with confidence.

Don't worry about the length. As demonstrated by G.B., empathy can be expressed in under 30 seconds:

Ten months ago I made a very bad decision that has affected the lives of everyone close to me. My actions have resulted in great pain to [the complainant]. I apologized to her ten months ago, and I apologize to her again today. I did not mean to hurt her or to betray her. I am sorry.

Finally, I remind you to take no action or make no statement to anyone before speaking with your lawyer about what's best. Toronto criminal defence lawyers differ in their approach. Your drafts can be protected by solicitor-client privilege by writing "to my lawyer" on each page.

Craig Penney, Toronto Defence Lawyer (updated 23 March 2017)
Certified Specialist (Criminal)