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On the face of it something has to change.

Updated: Aug 31, 2022

A commentary on Suzie Miller's Prima Facie, the relationship between sexual assault and the law, and Jodie Comer's West-End debut. Contains references to sexual assault and spoilers for Prima Facie (Suzie Miller).


Prima Facie (Suzie Miller) explores the relationship between sexual assault and the current judicial system of England and Wales. From the lighthearted moments of the protagonist’s mum buying her a bright pink satin shirt because ‘it looks like something a lawyer would wear’ to the brutal intensity of the final in-court monologue, Jodie Comer’s performance is relatable, immersive, and meaningful.


The subject matter of the legal monodrama is dark and eye-opening, revealing the experience of, and wider implications surrounding, sexual assault. Not only that, but Prima Facie explores the relationship between sexual assault and the judicial system. Whilst often given a wide berth, this topic is ever-pertinent: in 2021, the highest ever number of rapes (67,125) was reported by the police in England and Wales. This is even more striking when considering that only one in six women and one in four men report their experiences with sexual assault. Furthermore, charge and conviction rates for sexual assault and sexual abuse are currently among the lowest ever recorded by our legal system. These figures seem to demonstrate that the notion of justice, at least in this context, is merely an ideal.


Both images by Ehimetalor Akhere Unuabona.


Miller's script traverses the flaws of the existing legal system. It explores the cold-hearted trial methods, and the inability of the courts to see past the prescribed, logical mechanics. Miller herself is a human rights lawyer, drawn to exploring injustice within her artwork.



Overview


Prima Facie steps through a segment of the life of Tessa: a young, working-class, Cambridge-educated, Liverpudlian defence barrister. Tessa is known for defending the indefensible, regularly taking on individuals accused of sexual assault, in the absolute belief that the law will produce a fair result. Tessa explains that she and the opposition each tell a story, with the responsibility falling on the jury to decide which is more believable. She is confident in her ability to play ‘the game - the game of law’, to corner complainants without mercy, and to cause the prosecution to fumble under her line of questioning. Tessa owns the courtroom, and she knows it.


The audience then sees Tessa raped by a fellow Barrister at her Chambers: a colleague who is also an expert in criminal law. The performance shifts from playful into a compelling commentary on the workings of the law. Comer flits between showing the aftermath of the rape and Tessa’s experience at the trial, which occurs 782 days after the event. Particularly unsettling is a moment in which Tessa cross-examines herself in much the same way as she had cross-examined many victims and survivors in the course of her employment. The professional melds with the personal. She shows how easy it is to bring an entirely true account to its knees in a courtroom. Tessa is a shell of herself, crumbling as she is portrayed as the one being on trial, rather than the perpetrator. Facing the situation that she deftly commanded for so long, Tessa has to confront the question of whether the law - the criminal justice system on which she prides herself serving - will protect her.


It will not.


The crescendo of the performance focuses on how the legal system perpetuates the patriarchal order, declaring that there is no ‘real truth’; only that created by legal representation. Tessa reminds the audience that one in three women in the room is a victim or survivor. She calls for change, delivering hair-raising arguments regarding the lack of justice for victims and survivors, power imbalances, sexual consent, and violence. The outcome is intimate, fierce, and unsettling - all but indicting the legal system on which we rely for justice and protection.


Image by Kevin Schmid.



The relationship between the law and sexual assault/abuse


Prima facie: sufficient to raise a presumption unless disproven. The script of Prima Facie makes it clear that the legal system needs to change. Miller has talked about the response to the performance, with it being hailed as ‘urgently precise’ by barristers, detectives, and victims and survivors of sexual assault.


Every individual is entitled to legal representation, and every barrister is obliged to present the best case possible for their clients. This is how ‘the game’ works, as it absolutely should. However, Comer shows the turmoil this causes when a barrister herself, with all of the relevant knowledge of the law, becomes the claimant. Statistics show that the current legal system is ineffective; only 1% of sexual assault reports resulted in a charge in 2021. It is fair to presume that the remaining 99% of reports were not fabricated, and thus there is a clear deficit in the levels of justice achieved. This suggests that when it comes to sexual offences, the parties should not be made to play the game of finding the legal truth. There needs to be a way to access the real-world truth which, unfortunately, is not always the same thing.


The law will prosecute a defendant if the sexual assault is proven beyond a reasonable doubt. However, sexual assault too often creates a typical ‘he said, she said’ scenario. Often, the intercourse itself is undisputed, but the consent (or lack thereof) is in question. In this instance, an opportunity for justice can be missed as the burden of proof is so high. There is a general feeling among women that the police cannot do anything about their assault or abuse, particularly because it is ‘one word against another’. Whilst a jury may believe a victim or survivor, it is not often that they believe beyond a reasonable doubt. It follows that a staunch belief in the law is not appropriate regarding this topic. The law is not currently the optimal conduit for justice in these scenarios. Prima Facie was borne from such a thought process: Miller began creating this play when, studying criminal law, she realised that it was ‘almost impossible to actually run a sexual assault case and win it.’


It is known that victims and survivors of sexual offences can gain from experiencing a ‘day in court’ - an opportunity to be seen, heard, listened to, and believed. In our court forum, both the abuser and the abused are essentially put on trial and cross-examined. This allows both sides of the alleged offence to be explored in full detail, almost from an antagonistic perspective. However, this process can often be stressful, emotionally challenging, and even confusing, risking re-traumatisation; not wishing to publicly re-live a traumatic experience can often be the reason why those who are sexually assaulted or abused do not proceed with prosecution. This process ultimately upholds this. Of course, it is difficult to deeply assess the defendant when the nature of the offence leads to the perpetration being in a private setting. It is currently thought that one third of adults who experience rape are assaulted within their own homes, reducing the availability of supporting evidence, such as CCTV footage. For this reason, we focus on the ‘full story.’


Prima facie, therefore, tackles questions such as: what was the relationship between the parties? Was she drinking? Why did Tessa remove her clothing? Why didn’t she scream? Why does she have no physical injuries? The law focuses on the behaviour of the abused. Poignantly, Tessa questions: ‘why am I the one on trial?’ None of the above factors amounts to consent, and this line of questioning ignores the reality that half of the rapes against women are carried out by their partner or ex-partner. These more private cases are much harder to prosecute than violent assaults committed by a stranger. In a court of law, the above questions undermine the consent issue. So, is there a way to, instead, focus on the behaviour of the abuser? There is a current push among judges and barristers to try to develop a way to contextualise assaults through observing the more general behaviour of the defendant. This could include CCTV footage revealing predatory behaviour directed towards multiple individuals prior to/following the assault at hand.


‘Victimisation’ occurs at the hands of a perpetrator - and again at the hands of the legal system. Miller’s script includes a playwright’s comment that ‘the legal system is shaped by the male experience.’ The greater community tends to not believe women, possibly due to the patriarchal system we are raised in. This is illustrated by generations of men who believe that marriage amounts to life-long consent to sex. Further, an Amnesty International report showed that a third of people believe that a woman is at least partially responsible for her rape if she behaved flirtatiously; a quarter believe a woman is at least partially responsible if she wore revealing clothing or was intoxicated. This becomes a legal problem when we consider that the jury is assembled to represent the wider community. The judgement of a jury can thus contribute to the silencing and oppression of victims and survivors.


Image by Markus Spike.


Sexual assault law is often commented upon from a ‘male perpetrator’ perspective: we hear about careers being ruined and families being torn apart, as though the consequences of their actions are the fault of the victims and survivors. There is much discourse regarding male perpetrators being wrongly accused, which is very easy to find in the comments of any social media post regarding the topic. This is touched upon in Prima Facie, but Miller shifts the discourse onto a woman’s lived experience of the trauma, exposing the audience to the deeper issues at play.



The legal stance


Per section 74 of the Sexual Offences Act 2003, consent is an agreement made by choice, when the individual has both the freedom and capacity to make that choice. It thus follows that consent can be given and revoked at any time. Consent to a sexual act is not continuous, and cannot be assumed over time. Furthermore, importantly, a person cannot consent when intoxicated (R v Bree), groomed, or threatened, as that person does not have the freedom and capacity to make that choice.


The law also points out that a perpetrator will be guilty if they act intentionally and did not reasonably believe that the other party consented. Regarding this section of the law, it is the defendant's responsibility to actively ensure that the claimant consents. Furthermore, there is no requirement to actively communicate a lack of consent (R v Malone). Malone requires some evidence of lack of consent, the nature of which depends on the circumstances of the case. This could include the complainant being unable to consent, as discussed above. It could also include the complainant seeming unsure, staying quiet, freezing, or moving away.


Consent in practice is an enthusiastic 'yes', with active and ongoing communication regarding boundaries and choices between the parties.


Sexual abuse and sexual assault can be devastating. Those who experience it can experience any number of a variety of physical and mental consequences, including: anger, anxiety, avoidance, denial, depression, flashbacks, loss of appetite, numbness, physical injuries, relationship difficulties, shame, sexual difficulties, sexually transmitted infections, sleeping difficulties, suicidal ideation unwanted pregnancy.



Reducing the negative impact of the legal system on victims and survivors


With a record number of victims and survivors choosing not to pursue legal action due to concerns about the above, a pilot scheme will see three Crown Courts (Newcastle, Leeds, and London) upgraded to improve support for victims and survivors of rape. The Ministry of Justice announced the scheme on 17.06.2022 and aims to provide court staff and police with specialist training on working sensitively with victims and survivors, and properly assisting with rape trials. This training will highlight the importance of ensuring communication is consistent, appropriate, and timely. They also plan to provide trained Witness Support volunteers, Independent Sexual Violence Advocates, and intermediaries.


Additionally, each relevant Crown Court will have one room fitted with technology, allowing them to show pre-recorded witness cross-examinations. Another option will be for witnesses to give evidence from behind a screen. These improvements are intended to reduce re-traumatisation by reducing the courtroom pressure on complainants and providing them with a form of physical identity protection. Other improvements will include separate entrances and exits to minimise contact between claimants and defendants, and their respective loved ones.


Some in the industry have been quick to point out that the above commitments have already been in place under Special Measures (S 29 Youth and Justice Criminal Evidence Act 1999), suggesting the only new aspect is specialist training. However, it is envisioned that the lessons learned through the pilot scheme will also complement efforts to reduce the time it takes for rape cases to proceed through the Crown Courts, with data compiled by BBC News suggesting that serious sexual offences are currently taking the longest time on record to complete.


Prima Facie partners with the Schools Consent Project, which sends legal professionals into schools to teach young people about sexual offences and consent. With conversations around sexual consent and the legal system being limited, this process aims for grassroots changes. The project provides education regarding consent, and clarity regarding the laws available to protect individuals on the matter. This education is important to increase the awareness of the effects of sexual assaults and the confidence of individuals in the law. A lack of confidence, as we know, prevents the majority of victims and survivors from speaking out.


Despite the efforts of the above movements, issues remain with how victims and survivors experience the law in England and Wales. Among others, there have been issues around improper Legal Aid funding, a lack of adaptation to LGBTQ+ and fetish communities, and harsh time limits on bringing certain types of claims. There is much work remaining in this area, which would take a very long time to discuss. It is important that we continue to develop a more accurate language around sexual assault and abuse which separates the experiences from self-blame. It is also important that society becomes more aware of the different trauma responses which can affect victims and survivors, for example, freeze and fawn are just as common as fight and flight.


This is a very challenging are of law. Arguably, both a complainant and a suspect are placed in a disadvantageous position within the judicial system. It is important to consider the prejudice against defendants, and their experiences within the courts. Such a contentious topic is bound to create difficulties for both sides of the court, not just claimants. One more minor change which could occur is the alteration of police and court forms; before any investigation, these often call the ‘complainant’ the ‘victim’. This causes issues for the claimant by assuming their stance on the matter, for the defendant by assuming their guilt, and for any professionals involved for the same reasons.


It is estimated that 38% of victims and survivors of sexual assault or abuse never report to the police as they believe the police cannot help. Furthermore, in the year ending 09.2021, a further 41% of those who reported rape decided to withdraw their support for prosecution. With one in three women experiencing sexual abuse within their lifetime, the criminal justice system is failing. Tessa was forced to re-evaluate everything she thought she knew, which is a process many will be going through after watching Comer’s representation. I have never been certain of the effectiveness and justness of the law in this area, and the experience of Prima Facie has certainly thrown my hotchpotch of thoughts into disarray. In a world of extremely low sexual offence convictions, the play ultimately raises the question: is sexual assault unlawful?


Image by Michelle Ding.



Jodie Comer’s Performance


Anyone who knows me will be painfully aware of my love for Jodie Comer. I agreed to go and experience Prima Facie a long time before I knew anything about it: ‘Jodie is performing in London’, ‘We’re going!’. A few weeks before the show, I did a quick search to find out a bit more, which is when I found out that it was a perfect storm: Jodie Comer, law, and sexual assault. Based on my background, personal interests, and career path, this was a brilliant surprise. I braced myself for the best… Which is what she delivered.


Comer managed to perform for a total of 100 minutes, completely alone. She pulled off set transitions and outfit changes whilst giving a brilliant display of her iconic accents. She dealt with such an important, serious topic, allowing it to be just that. This was a challenging watch, but Comer gripped the audience for the entire time, never missing a beat. Her parents must be so proud.



Resources


Cases


R v Malone [1998] 2 Cr App R 447

R v Bree [2007] EWCA Crim 804


Legislation


Sexual Offences Act 2003


Youth and Justice Criminal Evidence Act 1999


Secondary Sources


Amnesty International Report. London: Times, November 2005



Miller S. Prima Facie 2019




Petrak J, Doyle AM, Williams L, Buchan L, Foster G. The psychological impact of sexual assault: a study of female attenders of a sexual health psychology service. Sexual and Marital Therapy 1997



Unsplash


Help is available


Victim Support: Help and support


Niamh O'Connor / niamhfoconnor / published 26.07.2022



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