Sunday, June 4

‘The courtroom is not fit for purpose’: the hard truths behind sexual assault drama Prima Facie | Theater

Suzie Miller: The play began as a seed when I was at law school, many years ago, studying criminal law. I was looking at how the system works, and thinking that something about the way sexual assault is managed within it doesn’t fit the bill. It’s almost impossible to actually run a sexual assault case and win it.

Kate Parker: I defend and prosecute sex cases. When you look at the statistics it’s clearly not working and I find it frustrating how it’s played like a game in court. It’s not about getting at the truth but a sort of legal truth, which I think the play captures. There are victims at the heart of this who aren’t getting justice. The play is partnering with my charity, Schools Consent Projectwhich is about sending lawyers into schools and teaching young people about sexual offenses and consent, trying slowly, one classroom at a time, to change views.

jodie eat: What blew me away when I read Suzie’s script was the journey that Tessa goes on – the woman you meet at the start of the play is very different by the end. Everything that she’s dedicated her life to and believed in is kind of thrown into the air and she’s forced to re-evaluate everything.

Emily Maitlis: Clair, you’re at the cutting edge of what it means to actually prosecute sexual assault. You will see these cases, week in week out.

Clair Kelland: It is so important that victims of sexual violence are treated in the right way and they’re listened to and respected. Tessa isn’t. It’s something that we’re really trying to change. With the issues of consent and the way that victims are believed or not believed and supported through that process, it really struck a chord with me.

MS: Jodie, tell us how the play starts and give us a sense of Tessa’s confidence and ebullience.

JC: Tessa is always aware of what’s going on in the room and how to manoeuvre. She’s extremely intelligent, incredibly witty. As a barrister you see her manipulating the court in a way, on the stage, which we’re kind of figuring out with the physicality and the set design, which has been fun. When you step into a courtroom, you play a role – that’s something that we’re exploring.

‘The greater community tend to not believe women’ … Suzie Miller in rehearsals. Photographer: Helen Murray

YE: Jodie’s really found the humor, in the first scenes, especially, where there are moments of her sharing a kind of secret inside knowledge of court. We’ve seen Rumpole of the Bailey and different lawyers on television. But this is a woman experiencing being a barrister and the sort of luxury and joy of playing with words and performance, which Kate does every day, in her real life.

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MS: Kate, do you get a thrill from bringing in court?

KP: Jury advocacy is very addictive. In the play, Tessa spots something in the brief and it’s like a lightbulb: “Aha, this is where they’re going to trip up in their cross-examination!” That felt true to life.

MS: Clair, your world is streets apart from any sense of a performance or game.

CK: We have to be objective as police officers but in terms of investigation we’re obviously considering the impact in front of the jury. We kind of get to know how it’s going to play out in court, but what we can’t do is second-guess the decision the Crown Prosecution Service is going to make in terms of charging, because if we do it’s a disservice to the victim. It’s not for us to make that decision. We just have to present the evidence in the best possible way.

MS: Suzie, the play asks something horrendously profound: is sexual assault unlawful? Which sounds like a ridiculous thing to say but if it’s very rarely prosecuted, if the cases never get through, if the conviction rates are really low …

YE: You have to be able to prove it beyond reasonable doubt. With sexual assault it’s often a “he said, she said” scenario because it’s usually a man and a woman. Victims are led to believe that this is their opportunity to be believed. And, of course, the standard is so high that it’s impossible to prove that, beyond a reasonable doubt. They then walk away going “no one believed me”. Now it’s really that they weren’t believed “beyond a reasonable doubt”. So it’s almost like the forum of the court is not fit for purpose for sexual assault. We put this person on trial themselves and cross-examine them rather than testing whether the other person did something wrong.

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Jodie Comer, right, talks to director Justin Martin in the rehearsal room.
Jodie Comer, right, talks to director Justin Martin in the rehearsal room. Photographer: Helen Murray

CK: Most of these offenses happen within a relationship or within a private setting. When you think of crime in general, you’ve got CCTV or witnesses. There’s none of that supporting evidence, which is why it’s really important that we look at the whole story. For example, if it’s an acquaintance sexual assault, or within the domestic relationship, we need to look at that relationship and not just the incident itself, because it’s the only crime where we are questioning the victim’s behavior and absolutely defense lawyers look at the victim’s credibility. So, was she drinking? Why did she invite him back for coffee? Why did she wear that? Why did she say that? Why didn’t she scream? Why has she got no physical injuries? It’s really difficult because it is one word against the other. And I think the system needs to focus on the behavior of the perpetrator and not the behavior of the victim. So say it’s an acquaintance rape, where they’ve met in a nightclub. Normally the way that the officers would put their case papers in would be: “The victim attended this nightclub, has 10 vodka and cokes, was drunk, met the suspect, invited him back for coffee, he raped her.” Instead, it should be: “The perpetrator attended this venue, we can see him on CCTV approaching other woman who appear to be vulnerable and trying to engage them in conversation.” Then you’re focusing on her behavior rather than victims of her credibility, because absolutely she’s allowed to go out and get drunk with friends, she’s allowed to invite him back for a coffee, but that does n’t, in my view, undermine the issue of consent. But it does in a court of law, because there’s so much focus on her behavior leading up to that moment.

YE: The jury system is reflective of the greater community. So, the greater community tends to not believe women, even other women. It’s because we’ve all been trained from a really paternalistic, patriarchal system that says: “Men do these things and it’s OK.” I also think we’re so shocked that it could happen to any of us that you think “no, no, no, there has to be a reason why it’s not going to happen to me”. So “I wouldn’t have worn that” or “I wouldn’t have drunk that much” or whatever. But I think as a whole, we’ve had generations of men going “you can’t rape a woman who you’re married to because they’ve already consented to sex for the rest of their life”.

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MS: In the play there’s a sense that women on juries can be tougher than men.

JC: One in three women have experienced sexual assault. I think there are probably so many women who have so much guilt and blame and shame about their own experiences that that’s how they then view other women. There’s so much that we don’t deal with, especially when people don’t speak up, about what it is that they go through. There’s a lot that we haven’t dealt with that we then kind of project on to other people …

KP: A lot of us round this table work in very male spaces. Part of you feel, rightly or wrongly, that there’s a balance between wanting to call out wrongdoing wherever you see it but also asking, am I going to raise the alarm every time there’s a barrister that makes me feel slightly uncomfortable? And especially within chambers structure, there’s no HR. This came across loud and clear when reading the play. So, if there’s an issue, you either go nuclear by going to the head of your chambers or you pipe down. It’s a really difficult decision for a woman.

MS: Suzie, you’ve started a conversation with this play. How do you want people to leave the theater?

YE: The focus of sexual assault law has so often been on the traditionally male perpetrators’ perspective of being wrongly accused. I just wanted to explore a woman’s lived experience. I did my research in various countries with specialist sexual assault courts where there’s a lot of expertise in the courtroom and an understanding about how trauma during a sexual assault can mean that there are very clear memories about some things and other parts that are peripheral and not as clarified. Theater is a forum where we can have these conversations and it’s no longer a frightening conversation. #MeToo allowed women to talk about it without it being shrouded in shame. It’s about widening that and saying it’s actually the shame of the whole community.

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