Prima Facie, “the mirror up to nature”?
Prima Facie is a feminist triumph.
In May, Behind the Gown was honoured to speak on a panel of women following a performance of Suzie Miller’s play.
Jodie Comer’s West End debut won unqualified praise from critics, stage, and screen audiences alike – it is the highest grossing cinema event, ever. London success secured a Broadway transfer and earned Comer best newcomer at The Stage Awards. “This play fed my soul in a way nothing had before”, Jodie revealed in her acceptance speech[1]. Certainly, Comer’s artistic choices suggest sympathy with roles exploring gender inequality and sexual violence. In 2021, she played Marguerite de Thibouville in Ridley Scott’s The Last Duel. Set in 14th century France, Marguerite is raped. She pursues charges, but a corrupt court process means the veracity of the allegation is decided by duel between her husband - and the accused.
Prima Facie is a polemic against a system failing women. That its importance and might spoke to Comer is clear. Perhaps, then, it is the play’s message, along with Comer’s gravitas that marked Prima Facie out for greatness. The script demands such depth. Tessa’s trajectory is Shakespearean. At first, we watch her robed, assured, sashaying across stage navigating opponents, witnesses, judges. She delights in the “game” of law. “If the story has holes, point them out”, “test it, test it”! “There is no real truth, only legal truth.”
Then, Tessa’s raped. We witness her unravelling. Internal conflict played out through constant self-cross-examination: the alcohol drunk; giggling; inviting him home; removing her own clothes! “I cannot stop all the voices”. For 782 days between the rape and the trial, Tessa loses peace of mind, sense of self, safety, friends, career, the case, before emerging at the end - still in court, but barefoot and unrobed now - an old belief-system shed. It’s a symbolism reminiscent of King Lear whose descent into madness and acquisition of self-knowledge is represented through the removal of kingly garments. “Robes and Furred gowns hide all”.[2] Both plays centre on sight - seeing things for what they really are, not what they appear to be prima facie.
“Now I ‘see’
through my own experience,
that we have it all wrong when it comes to sexual assault”[3].
“All my life I have participated in a system that has done this to women.”
It is a testament to Tessa that she rejects her learning, legal instincts, and belief in a system in which she’s thrived, for something better, more just. “I really wanted to make the stakes as high as I could”[4], Suzie Miller told Behind the Gown. “I wanted us to go with her believing in the system and getting tripped up”. But rather than succumb to silence, dissuaded by defeat, Tessa finds a new voice, a voice for women. She is unique.
Perhaps this is why the play felt so powerful. It is rare to hear a barrister speak up for women in the way Tessa does. It is not easy to. I have seen barristers deride those who challenge the trial process on behalf of complainants of sexual assault. Others cleave to the right to fair trial as way of dismissing the debate. When the London Victims’ Commissioner called upon the CPS to only request pre-trial therapy notes to show the impact of the crime as opposed to any other purpose, (i.e. when ‘relevant’), one commentator tweeted: “So NOT to ensure a fair trial. God help us”. It's the kind of response that side-lines complainants and promotes consistency and faultlessness. Apart from complainants feeling as though they might have to choose between trial and therapy, are minor differences in therapy notes and statements now disclosable? Prima Facie warns against this:
“As a lawyer I know the law can’t jettison consistency entirely,
but in sexual assault trials can we keep using it as the litmus test of credibility?
Because,
as a victim survivor,
let me tell you that the rape and perpetrator are vividly recalled,
the peripheral details not so clearly.”[5]
An undefined test of relevancy risks perpetuating outdated beliefs around trauma. The issue is nuanced. Dismissing the concern stifles women’s voices, and with it, much needed change.
A 2018 report on the operation of s.41 YJCEA 1999[6] - the legal framework governing the admissibility of a complainant’s sexual history - described it as contrary to ethical and constitutional obligations of prosecuting counsel to robustly oppose an application. As impartial ministers of justice who do not play a fully adversarial role, it would be “wholly improper” to oppose an application that was warranted and admissible. Surely, myths surrounding ‘relationship rape’ require prosecutors to defend applications. Stripping prosecutors to passive participants puts the defendant’s rights above all others. But, at what cost? And with worryingly low conviction rates, why do we think that’s right?
We must protect against the falsely accused. Yes, but “a false rape accusation, like a plane crash, is an objectively unusual event that occupies an outsized place in the public imagination.”[7] And what about women, disbelieved? Who’s protecting them? “The anxiety about false rape accusations is purportedly about injustice (innocent people being harmed) but actually it is about gender, about innocent men being harmed by malignant women.”[8]
Defending in this way has a male face. It does not have to. Trials are not trade-offs between rights. Pushing for greater rights for complainants does not render a trial unfair. It is tedious having to explain otherwise. What it does do is redress a skewed system in which the subjugation of women is entrenched. Prima Facie implores us to listen to women, and challenge our attitudes to consent and credibility. Fairness demands it. We have all ‘seen’. Something must change – it could start with us.
[1] empire street (@estreetprods) • Instagram photos and videos
[2] King Lear. Act 4, Scene 6
[3] Miller, S. Prima Facie. Nick Hern Books Limited. London. 2022. Page 95
[4] Behind the Gown, Instagram Live with Suzie Miller, recorded 26 May 2022
[5] Op. cit. at 94
[6] Hoyano, L. The Operation of YJCEA 1999 section 41 in the Courts of England & Wales: views from the barristers’ row. An independent empirical study commissioned by the Criminal Bar Association. 2018. Paragraph 128
[7] Srinivasan, A. The Conspiracy Against Men in The Right To Sex. Bloomsbury Publishing. 2021. Page 15
[8] Ibid.