Suzie Miller was studying at law school in the Eighties when she began to think there was “something amiss” in the way that sexual assault was prosecuted and defended. “I thought, ‘Gee, I can’t believe you’re allowed to mention what the woman was wearing,’” Miller, now 60, said.
Later, as a human rights and defence lawyer, she worked with young women who had been sexually assaulted. Every week she would take six statements, all from women and girls under the age of 25, as part of an application process for victim compensation. The details of each case were different: some of the women had been assaulted while they were on a date, while others were attacked by someone within their social circle. Some girls had been assaulted while in foster care, or by family members.
“They were always really horrific,” Miller told me one recent afternoon in a central London members’ club. “But the stories started to become really similar. So many of the women had the same reaction: they froze. Or they tried to talk the person out of it, to get out of the room by being polite.”
Psychological studies have shown that these are legitimate survival responses. But they “are what defence lawyers use to undermine a woman’s testimony”, Miller said. “They say: ‘You didn’t hit him or struggle enough,’ or ‘you didn’t try to run away’.” Instinctively, a woman will know whether she stands a chance fighting or escaping from a man who is physically larger or stronger than her. But if she denies that she even tried, a defence lawyer can argue that she implied consent, which “is just really unfair”, Miller said.
This flaw in the way in which the legal system handles sexual assault cases is the subject of Prima Facie, Miller’s one-woman play that was a runaway success on its opening in the West End in 2022, and again on Broadway in 2023. The Killing Eve actress Jodie Comer plays Tessa, an ambitious defence lawyer in her early thirties who has overcome the social barriers of her working-class background to ascend to the bar. She wholly believes in the legal system as a means of securing justice, and revels in the performance of appearing in court.
One night she has consensual sex with a colleague, Julian. Later that week they go on a date, and after dinner they go back to Tessa’s flat, where they sleep together again. Tessa is then unwell, vomiting into the toilet, when Julian carries her from the bathroom back to the bed and rapes her. In the early hours of the morning, Tessa reports the assault to the police. The play’s tense yet frenzied second act recounts Tessa’s trial in court – where this time she is on the receiving end of a defence lawyer’s cross-examination.
The story – which Miller has adapted into a novel, published this month – ends with the jury finding Julian not guilty. Tessa knows Julian assaulted her but her memory of the whole night is patchy, which the defence uses to suggest her account is unreliable. As the trial concludes, she has a revelation. Using the rhetorical skills she has honed as a barrister, she says: “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?… Could we not start with asking the accused, ‘What did you do to determine consent existed in the first place?’”
Julian’s defence lawyer tries to hush her, the judge begins to redden, and the court journalists scribble frantically. She concludes: “The law of sexual assault spins on the wrong axis.” The real-world statistics prove her point: according to the UN, one in three women will experience sexual violence. In the UK, only one in ten of those women go to the police, and only a few of those cases go to court. Of the ones that do, the conviction rate is 1.3 per cent.
Miller, who was born in Melbourne, Australia in 1963, wore a black jumper and velvet trousers as she sipped tea during our interview. Underneath the table she hid a surgical boot. A month previously, she had broken her leg when she was in New York to launch the novel. But that didn’t stop her from carrying on: these days, she isn’t used to sitting still for long. She quit law in 2010 to move to London and write plays full time; to date, her works have had 40 productions around the world. She still spends most of her time in London, though often returns to Australia with her husband, who is a judge in the country’s High Court, the equivalent of the Supreme Court. The couple have two children, a 24-year-old son who works as an artist, and a 21-year-old daughter who is studying game design.
Miller would never return to the law, about which she now has a “push-pull feeling”. “When I started, I thought it was really quite a remarkable thing. You get taught, very clearly at law school, how to play your part in a system that makes sense. Then you start to work in it and you think, ‘Oh, there’s some things that don’t add up.’” She paused, laughed, and then looked totally serious. “It’s presented as an objective science. It’s not a science. It’s totally made up.”
Prima Facie won an Olivier Award, and Comer won a Tony for her performance as Tessa. It became the highest-grossing National Theatre Live cinema release to date. More importantly, it is fuelling real change. After seeing the play, a senior British judge rang Miller to let her know that she had rewritten the direction that judges read out to the jury in rape cases to include that, just because someone doesn’t remember something perfectly, it doesn’t mean they’re lying. Defence lawyers jump on a victim’s misremembering of a small detail – such as a blue lamp, when it was in fact red – to show that the rest of their memory must be faulty. “But psychologists have shown that someone who is the victim of sexual assault often remembers exactly who the person is and what they did to them, but they might not get the order right, and they certainly don’t remember peripheral details.”
The judge used lines from the play in her rewriting, and calls it her “Prima Facie direction”. Miller laughed. “I was so moved by that. There I was – I’d done a law degree, a master’s in law, I’d practised for 15 years, I’d quit more than ten years ago. Here I am writing plays. And I thought that five-minute conversation might be the best [result] of all those years of study and practice.”
After seeing the play, another female judge changed the protocol in Northern Ireland so that judges must now watch a video of Prima Facie as part of their training. These experiences proved two things, Miller said. “They show that art can effect change, but they also show that you need women in powerful positions to be able to make the changes happen.” She noted that it was only recently – in 2021 – that the Old Bailey reached gender parity, with seven female and seven male full-time judges: representation that has been crucial. And a group of primarily young, female barristers have also set up The Examination of Serious Sexual Assault (TESSA) – a nod to Prima Facie’s protagonist – which is helping to rewrite existing legislation, so that the onus in trials is on the alleged perpetrator to prove why they don’t believe they committed assault, and to include ideas such as affirmative consent.
Activists are calling for the legal definition of sexual consent to be changed so that, in the words of “Affirmative Consent”, a new campaign, “anything less than a clear, uncoerced and informed confirmation of consent like ‘Yes’ cannot qualify as consent in the eyes of the law”. The campaign was launched on International Women’s Day earlier this month by the advertising agency CPB London and the non-profit group Right to Equality. Their posters containing the slogan “I’m asking for it”, co-opting a misogynistic justification for sexual assault, was widely criticised, but Miller supports the goal of the campaign. The messaging is “smart on one level”, she said, even if “we’re not quite there yet, where ‘I’m asking for it’ has the nuance attached to it that they’re assuming. We might not yet be ready for that slogan to be turned into something positive.”
While Prima Facie skewers the legal system, the law is “supposed to be a reflection of the community”, Miller said. But in our culture “sexual violence on women has been under-reported, under-convicted, not taken very seriously, seen as something that the woman contributed to by engaging in a relationship with someone. There’s an inherent misogyny in our culture, and that culture starts with what we tell our boys.”
Miller was shocked that, after a group of 14-year-old schoolboys came to a Prima Facie performance, they told her they “didn’t even know” that what they had watched play out on stage was sexual assault. Because Tessa had consented to sex earlier in the night, they didn’t understand that when Julian pushed himself on to her later, he was assaulting her. “We need to be much more vigilant,” a determined Miller said.
Earlier that day, she had been talking to the play’s producer about providing a free film of the production to be shown in all British schools. The full impact of Prima Facie is yet to be felt.
“Prima Facie” by Suzie Miller is published by Hutchinson Heinemann.
[See also: Free Kate!]
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