Transcript: “Justice Means Safety”: Sexual Violence and Law Reform, with Sandy Brindley

Podcast cover for Lawmanity podcast with smiling woman and her name: Sandy Brindley

Host: Jen Ang

Quote: Sandy Brindley

And I was so shocked at, ah, how she was treated. I actually couldn’t believe it. It wasn’t just the questions, it was just the demeanour.

Jen Ang

So welcome back, everyone, to the Lawmanity podcast, where we explore the complex relationship between law and activism and discuss the different ways that law can oppress people but can also lead to real social change.

I’m Jen Ang, a human rights lawyer and activist based in Scotland and your host on the Lawmanity podcast.

This week we’re speaking to activist and, legend Sandy Brindley. Sandy has recently stepped down as Chief Executive of Rape Crisis Scotland after 24 years at the organisation. She’s been part of the Rape Crisis movement, supporting and advocating for survivors of sexual violence for more than three decades, starting as a volunteer support worker in Glasgow in 1994 before leaving to set up Rape Crisis Scotland in 2002.

Sandy’s work and activism throughout this time has been heavily influential in driving progress for survivors of rape, sexual assault and abuse in Scotland, both in terms of legislative change and improved individual and institutional responses to addressing attitudes and the culture that permits this violence.

In 2018, Sandy was awarded an honorary doctorate from the University of Glasgow in recognition of her efforts and achievements. And even so, not satisfied with an honorary doctorate, Sandy is at present pursuing a research doctorate at the University of Glasgow School of Law, where she is exploring what effective participation looks like for complainers of sexual crime in Scotland.

Welcome, Sandy, to the podcast.

Sandy Brindley

Thank you.

Jen Ang

I am so pleased to have you. We have worked together for a really long time, and one of the things that occurred to me is that I know so many interesting people like you, but I never actually get the chance to ask you these questions. so thank you very much for offering your time and, yeah, and indulging me. I’m really interested to see where this goes today.

So, in this podcast, I’ve been experimenting with a surprise opener question to get us, settled and to learn a bit more about the people behind the legends we’re interviewing. So if you don’t mind, could you please tell me about a sense of smell that’s meaningful to you? Maybe something you just really like or something that’s connected to a place or a time that you like to bring to mind?

Sandy Brindley

Well, I like the sun and I like the hills, and I think you can get a particular smell when you’re outdoor without a lot of noise or pollution. And the sun is shining. So that is an evocative smell for me that I like.

Jen Ang

Oh, that’s amazing. And actually, I almost feel it, but not quite. It’s a bit cloudy today here in Edinburgh. But I’m also, I’m almost feeling summertime in that evocation. And also a really good reminder for, you know, a lot of activists are, often head down, you know, busy burrowing away. So a good reminder to get out into the wild, into the open spaces. But thank you for that.

With that fun over, we’re now going to move on to the questions I have for you. So the first one is very broad, but the question is just, you know, do you feel that the law works equally for you or for your community or the community you work with? And why or why not?

Sandy Brindley

So I started in Rape Crisis, as a volunteer in I think it was 1994. It was certainly 30 years that I’ve been involved in rape crisis. And a lot of that work has been working around legal responses to sexual crime and trying to improve legal responses to sexual crime. And I still remember really vividly the first woman that I supported in court when she was given evidence in a rape trial. I think it must have been like maybe ’96. And I was so shocked at how she was treated, I actually couldn’t believe it. It wasn’t just the questions, it was just the demeanour of the defence lawyer was almost mocking and so demeaning towards her. And I thought, here’s a woman who, this is devastating for her, is terrifying, going to give evidence in court and we’re treating her with such a lack of humanity.

And that experience did have really quite a profound impact on me in terms of, I suppose a lot of the work I’ve done since then, which has been engaging with the justice process to try and make it a little bit less traumatic for people and particularly women who are seeking justice.

So not all the time I’ve worked at Rape Crisis, I have seen really, really significant changes. I think there is no doubt that the law in Scotland and in many jurisdictions fails women who are seeking justice after rape. Like, undoubtedly, you just need to look at the statistics: how many cases never make it to court, the low conviction rate of those that do. It’s the lowest conviction rate of any crime type rape has in Scotland. But also just the stories that survivors tell us about how traumatic and violating the experience has been, particularly of court and of cross examination.

So I think it’s fair to say my strategies have maybe changed over the years. When I was like in my early 20s, fueled with anger, you’re not always that constructive, I think, in your approach, when you just really feel the injustice of It. Whereas as time has progressed I’ve realised that the way to make change really is relationships and finding common ground. And I think we have built some really positive relationships with the Faculty of Advocates, with the Crown Office, with the court service and really trying to work together to make things better, like while still retaining enough of a critical edge to stand outside and criticise where it’s absolutely necessary.

So that’s a long way of saying no, I don’t think the law does treat particularly women equally who have experienced sexual crime. I think it’s getting better, but I think there’s still a lot to do.

Jen Ang

That was really, really clearly put. And also I love that idea that it’s both about building relationships but maintaining that criticality. I think that that’s a really difficult balance but an important one. And I can only imagine how much change you’ve seen over the long period of time that you’ve been working in this area.

And I guess thinking about that, so thinking about examples of places where the law has worked well and places where the law has failed to protect people, do you feel that the law is a barrier then to change? Or is it a tool to achieve greater equality for people who are marginalised? Or is it maybe a little bit of both?

Sandy Brindley

I think it is both. I mean, I think as a feminist engaging with the concept of law reform, I think we need to be aware that there are, I think really powerful arguments, particularly from black feminists about the intrinsically hostile nature of the justice process and potentially intrinsically racist like that limits that.

I think we need to be realistic to how much we can improve a system that really wasn’t set up to achieve justice for women who’ve experienced such an intimate violation. But I don’t think that means that we can’t try. And I feel like as long as women are still seeking justice from the criminal justice system, to me we have an onus to improve that system, to minimise the harm it causes.

So I’ve been doing interviews for the PhD. I’m doing the part time PhD at, ah, the University of Glasgow. I’ve been interviewing like they’re called complainers in Scotland, so survivors going through the justice process around in sexual crimes.

I’ve interviewed 24 complainers and part of what I’ve been exploring is: what does justice mean to you? Because I think that’s a question we don’t ask often enough for women who have been raped, like what would justice look like? What would it feel like to get justice for what you’ve been through? And overwhelmingly, what women have said to me is that justice means safety. And I think it is hard to see any way for women who have been raped to feel safe without, engaging with the criminal justice system like that.

Prison does actually have, as much as there are many flaws to the system, prison does have an important role in that it enables women to feel safe for at least a period of time while the rapist is in jail. There was one woman that I interviewed who was just terrified because her rapist was up for parole and she was saying, I know he’s going to kill me when he gets out. So I think it’s important to bear that in mind. About as much as there are limits and criticisms of feminist engagement with law reform, these are really urgent issues for women who’ve experienced rape or, sexual crime.

So I think law reform is important. I think the law can play a really important role. I think it can also play an important educative role. So we reformed our approach to the definition of rape and gave a definition of consent for the first time back. And I think, was it 2009, the Sexual Offences Act. We set out a definition of rape which included male rape for the first time, which I think was important. It also defined consent. Consent is free agreement and it set out a list of circumstances where consent is presumed to be absent. And I think that is so important as an educative tool, particularly for speaking with young people.

I think one thing that the government should have done and didn’t when they introduced the Sexual Offences Act that redefined rape and defined consent was I think there really should have been a proper public education campaign and community engagement, particularly young people, to say: this is what the law is.

Because you can have really great law on the books. If people don’t know, for example, that having sex, and I’m putting sex in quotation marks with a woman who is sleeping is rape, then the law really is failing and its function. So I think as an educative tool, it can be really important.

We had another example of that recently where there was a judgement, an appeal judgement came out that confirmed that you can’t consent to non- fatal strangulation. We’re seeing this a lot in rape cases like forensic nurses are reporting. I’ve really seen quite a lot of this in rape exams, like forensic rape exams, defence lawyers. I was speaking to an advocate, a KC, the other week who was saying they’re just seeing this so much in cases where they’re defending young men. Like so many of these cases, sexual offence cases involve non-fatal strangulation. To me, it’s clearly coming from what young men are seeing online, and particularly the impact of pornography and depictions of sex that portray, for example, women enjoying this or that’s been a normal part of sex. I think it’s so important that young people are equipped with knowledge about the law, both for young men, so they don’t end up carrying out this behaviour thinking it’s normal and then they end up before the cause.

But also for young women, I think it’s really important because young women are under so much pressure to perform in a particular way in relation to femininity, in relation to heterosexuality, that I think it can be hard for young women to really connect with what feels pleasurable to them and what feels okay to them. And that’s not just societal pressure fed by the narrative of pornography. So I think that is really important that we can speak to young people and say, this is actually what the law says. And I think we shouldn’t forget the power of that. While we also look at other ways of trying to change societal attitudes, that the law has a really important role there.

Jen Ang

Yeah, there’s so much. There’s a lot of richness there. Just sticking maybe with the question not of what the law can do now, but actually the actors, you know, that we interact with within the law. The question is, what for you, just where you sit, is the role of lawyers in the legal system in relation to social justice movements?

Sandy Brindley

I think there is a huge potential for the legal profession to really uphold justice, for women who are people who have been raped and to progress it. But I think there’s also the potential for actors within the legal profession to really diminish what I would say is the human rights of women seeking justice for rape.

I think there has been a real improvement in how defence lawyers conduct themselves in cases of this nature. And I don’t want to say that there’s no exceptions to that. There have been some absolutely terrible exceptions and I have heard some really awful stories from women as part of my research about just how devastating cross examination was for them.

Like one woman was saying she scrubbed herself for so much afterwards in the shower that she actually hurt herself and had to get medical attention. Like, it really is quite visceral, the damage that cross examination can do. And rape cases, if it’s not conducted properly or within acceptable boundaries, like, obviously evidence has to be tested, but we need to have some humanity in how we do this, I think, as a society and as a legal profession.

But at the same time, there’s people within the legal profession, including defence counsel, who are really committed to taking a more trauma informed approach to cross examination to get rid of what you could see are the excesses of cross examination.

And I mean, there is no doubt there’s excesses. We’ve had a number of High Court appeal judgments where they’re actually quoting what happens in cross examination that really, I would say are beyond the pale in terms of how women are being treated.

But you can then contrast that with, for example, our current Lord Advocate, Dorothy Bain, has really, I think, made a difference in the prosecution of these cases. But also we have a kind of process called a Lord Advocate’s reference in Scotland, which is a way of testing a point of law. And there’s been three Lord Advocate’s references that she has brought in corroboration. So Scotland is quite unique and still having like a formal requirement for corroboration, like, so a second source of evidence to be able to prosecute a case. And this has been particularly challenging in rape cases because they often happen in private.

Previously, prior to Dorothy being the Lord Advocate bringing these Lord Advocate’s references, you had to corroborate the individual elements of rapes. You had to corroborate penetration, lack of consent and identity of the accused. And that was really, really difficult, particularly for historic cases where you almost never had forensic evidence, like how could you possibly corroborate penetration?

So she brought these Lord Advocate’s references to test these points. They have led to really quite landmark, seismic changes in how we approach corroboration in Scotland. So I think that does show the potential for progressive change brought about by people within the legal profession themselves. So I remain optimistic about the possibility for change within the law. I’m, optimistic about the relationships that we’ve built and I’ve built with people within the legal profession. And I think it’s within those relationships that is the space for progress and the space for change.

Jen Ang

Thank you so much for setting that out and also telling us quite a lot more about the reform that you’ve seen or the change that you’ve seen over the years. I honestly think, Sandy, that there’s a book in there somewhere. I know that possibly wasn’t what you expected, I would say. But I, just think it’s really interesting the number of different types of legal reform and the challenges that you’re still identifying you and your team in the space that you work in. But I’ll just leave that on the side. If there’s a book that you write, I’ll read it for sure. and I think many others would as well.

And I guess in a way that leads me on to the last question, which is that there will be people out there listening to this podcast who are listening to what you’ve accomplished, and they might be wondering how they might get to where you are. So how could they actually be you one day? So my last question is, what advice might you have for someone out there who’s a younger version of you, or indeed for you yourself? You know, in your early career, when you were starting out, what, would you say to them about getting to where you are today?

Sandy Brindley

I think in many ways I’ve been really fortunate about finding a passion. Like, not many people have a job that they believe in so deeply, where you feel like you are able to really progress, change as part of your job. So I think it is about finding your passion and what you believe in and trying to find a role that’s consistent with your values and with your passion.

In terms of becoming involved in Rape Crisis, like one of the best ways of becoming involved. And this is not accessible to everybody. But it’s volunteering, that’s how I started. I started as a volunteer in the helpline. That has been so invaluable to me, that experience. I did that for a number of years. That is where you learn, is you learn from speaking directly to survivors. I believe really strongly that’s how legal strategy and policy has to work, as if it’s directly informed by survivors’ voices.

So responses to sexual crime is this vexed question that has faced many, many every jurisdiction, I would say. We have tried so many different elements of law reform in Scotland and maybe made a little bit of difference, but have not made any fundamental change to how traumatic complainers’ experiences are. And I think the way to change that is to ground our law reform efforts directly in complainers’ experiences. So certainly what I’m finding through my research is that, the legal system really replicates the trauma of being raped because of the lack of control, women have gone through the criminal justice system. And the clear answer to that is give complainers in rape trials as much control as possible. That’s difficult in an adversarial system, but where you have the potential for choices and agency, give those choices and agency. And that, I think, is the way to reduce some of the trauma and just make sure complainers feel better prepared.

So that’s a little bit circular to your question, but where it takes me back to as if this is the work you want to do, your starting point for me is supporting and listening to survivors. And then I think that then gives you the answers to what needs to happen, which then I think informs your trajectory of how you want to change the world, really.

Jen Ang

Amazing. Thank you very much for that, Sandy. Those are wise words. and also practical, just like you. And I know for a fact, having worked alongside you for, I mean, I guess over a decade now. Yeah, you live that actually. I mean, what you’ve just described is exactly, you know, the shape of your work. Not always easy, but definitely always needed. So thank you for your time today. I do appreciate it. I know how busy you are and I am certain actually though, that others will benefit from listening to you reflect on both the work that you’re doing, but also where lawyers and law sits in relation to seeking justice for the people who you and your team work with.

So, thank you again, Sandy.

Sandy Brindley

Pleasure.

Jen Ang

And that’s a wrap!

Thank you our lovely listeners, for joining us for another episode of the Lawmanity podcast. If this episode has inspired you to take action and you want to learn more about the Rape Crisis movement or how to get directly involved in the work of Rape Crisis locally, we will put some links in the show notes for this episode.

Next week, join us for a one to one interview with feminist scholar and activist Pheona Matovu. We’ll speak to her about co founding the organisation Radiant and Brighter and the challenges of tackling migrant destitution and promoting inclusion for families with no recourse to public funds under the UK’s hostile environment policies.

We’ll also hear about her research as a PhD student and James McCune Smith Scholar at the University of Glasgow where she works on what employers can do to take action against racism in the workplace.

If you loved today’s episode, please do hit the like and subscribe buttons and share our episodes with friends and colleagues who might enjoy learning a little bit more about how law really works in practice, and how it can be used to make the world a better, brighter place.

The Lawmanity podcast is co produced by me, your host Jen Ang, and by the brilliant and talented Natalia Uribe. Shout out to Halina Rifai for mentoring us through our first year of this incredible project. And thanks also to Amanda Amaeshi on graphics and socials. The music you’ve been listening to is ‘Always on the Move’ by Musicians in Exile, a Glasgow based music project led by people seeking refuge in Scotland.

Thanks so much for tuning in today. We hope you enjoyed listening and see you next time!

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