“Something has to change”
Authors: Mac Eochagain Bridget 
Published: August 2023

In April 2022, I found myself in the Harold Pinter Theatre on the West End, waiting to watch Jodie Comer star as protagonist Tessa Ensler in Suzie Miller’s Prima Facie. Surprised that after two years of on-and-off-again lockdowns due to COVID-19, I had finally made it all the way overseas to see this Australian play on the British stage, I asked the person next to me if they were excited to see the show. She was a young, twenty-something woman who smiled and said, “I can’t wait to see Jodie Comer in the flesh”. I asked what she knew about the play, and she told me a friend had given her a ticket because she was a Jodie Comer fan and that she did not know anything about the play before coming tonight. I was apprehensive on her behalf, knowing she was about to see a profound performance of a woman processing her own rape on stage, without forewarning. I realised in this moment how far this play had come in a brief period, from its first small run at the Stables Theatre in Sydney to London’s West End, in spite of a global pandemic. After the play ended, I turned to ask my neighbour what she thought. She was crying. After several moments, she praised Comer’s performance, launching into her thoughts on how powerful this play was, how profound an impact it could have for discussions of sexual assault.
Prima Facie’s international success, emerging in the wake of the #MeToo movement and COVID-19 pandemic, seems like no coincidence. The negative impact of these two cataclysmic and simultaneous—in that they have impacted and intersected in Western society since their initial emergence—events on the collective health and wellbeing of society cannot be understated (Sehrbrock). They highlight the need to consider how we can enact change within our structural systems to foster frameworks that support our most vulnerable. If we acknowledge the potential for contemporary theatre as a site for political change, we can evaluate its vital role in the wake of such events in framing the problematic issues that exist within society, such as rape culture, as something we can and should critically reflect upon; something Prima Facie has the power to do. While Prima Facie does not have the ability to lessen the impact of COVID-19, its run on the West End marked the beginning of a return—in Western countries at least—to live theatre and events, and as such, a return to the commentary on life and society that theatre can provide. Leading theatre scholar Lisa Fitzpatrick asserts that contemporary rape plays “emerge from personal and collective experience” (220), showing us that contemporary theatre like Prima Facie is created both because of, and to provide a discourse on, real-world situations. This article will argue that Prima Facie has immense value in reshaping what wellbeing means to us in light of these global events—particularly in relation to the #MeToo Movement, which centred women's voices and experiences in contemporary legal and political spheres—and thus shows the possibility for shifting policies, practices, and perceptions to promote and protect the self. The play expertly interrogates the political, legal, and social systems in which those in a liberal democracy, like Australia—and by extension, the UK and USA—all live; those which arguably have been established with the overall wellbeing and benefit of society in mind.
The play’s protagonist, Tessa Ensler, is an accomplished criminal barrister who has built her career representing defendants accused of sexual assault. When Tessa herself is the victim of a rape, she faces the reality that society’s legal and political systems, while pursuing 'legal truth’—the idea that truth in a courtroom is often shaped by cultural beliefs and perceptions, rather than objective truth (Tidmarsh and Hamilton 2)—, do not make adequate adjustments for a woman’s lived experience of sexual assault. Shannon Taylor elaborates on this from her own experience as a sexual assault victim when she states that

fact is capitulated and, under the male gaze of patriarchy and arguments of legal dialect where concepts of truth, morality, ethics and justice are foreign entities, the experience, the evidence of survivors is oftentimes rendered useless, or at best fragmented, diluted, sanitised, modified. (Taylor 64)

Victims of sexual assault are in a unique position as the complainant and (usually) sole witness in a prosecution case and thus bear a greater burden than many other types of crimes (Taslitz 6). These cases can fail to recognise the trauma undergone by a woman in such a position, and the struggle to provide convincing evidence in legal prosecution—or, as in most cases, absolution—of the defendant. Moreover, the staggeringly low conviction rate for sexual assault, which sits at less than one percent (Daly and Bouhours 566), does not bode well for an alleged victim’s confidence in reporting such a crime, or agreeing to stand trial if an eventual prosecution were to happen. The audience is positioned to witness Tessa peel back the patriarchal layers of the legal system and look at the socio-cultural barriers that have held victims of sexual assault back from achieving justice: “we do not interrogate the law’s own assumptions, instead we persist in interrogating the victim … there cannot be any more excuses. It must change” (Miller 93). Thus, the spectators of Prima Facie are left with the play’s final words, “something has to change” (Miller 97), lingering on, challenging them to conceive of a system where the wellbeing of sexual assault victims is prioritised alongside the pursuit of legal truth. It ultimately calls for a revision of the systems that exist, and for the promotion of significant, systemic change, both to better the wellbeing of individual victims, but also our society as a whole. Miller attacks these systems in a strategic manner, persuading the audience into sharing in this belief that for society to achieve wellbeing for all its members, it must ameliorate the parts that neglect and damage our most vulnerable. Tessa’s journey over the course of the play has the power to threaten these systems within society, highlighting the ways in which they expose victims of sexual assault to re-traumatisation, social rejection, and a statistically likely loss in court (Spohn 89).
Tessa’s story arc is presented to the audience as symptomatic of the systems—specifically the law—that uphold problematic representations of rape and its victims in society. Tessa is first presented to the audience as a young, determined criminal barrister with an uncompromising stance towards the sexual assault cases she takes on. She argues that it is not her job to determine if the crime happened, but rather “find holes in the case and keep the police honest. Protect society” (Miller 31). Tessa holds firm to the belief that the law is fair and just, that innocent until proven guilty is “the bedrock of how you keep a society civilised” (Miller 30) and “if a few guilty people get off then it’s because the job wasn’t done well enough by the prosecutor and the police” (Miller 35). The audience watch Tessa cross-examine alleged victims of rape; doing so with disarming frankness, posturing that she is testing the law, “test[ing] her word, her version of the story” (Miller 41). In reality, she is conforming to the long-held socio-cultural belief that, despite rape being a deeply personal trauma against oneself, complainants must remain clear and “composed” (Miller 41) to have a chance at winning their case within the rules of the law, upheld via gendered scripts of what a rape victim should look like (Donat and D’Emilio; Fraser; Herman; Ullman). Feminist scholar Tara Roeder grapples with this struggle for women who testify in rape cases, as they “will indeed find themselves under intense pressure to tell clear, concise, and coherent accounts of the violence they have undergone” (18), which can serve to challenge and deny their experience if not presented in the neat package that the legal system demands. This ideology begins to waiver when Tessa is sexually assaulted by her colleague Julian. In acting out the particulars of her own rape on stage—by not only someone Tessa knows, but someone she works with and has been dating—Tessa reminds the audience that rape is not only more pervasive and common in society than acknowledged, but that it can often happen in a way that is less clear cut than is often socially understood.
Tessa becomes the voice of reason in a culturally complex issue, positioned on both ‘sides’ of the law—a defence barrister and later victim—and thus in an impossible situation of an adversarial legal system which demands that one side wins and the other loses. This highlights the problematic nature of legal processes being a game, where the ‘winner’ of the case is which lawyer tells the best version of their client’s story (Miller 35). What this system fails to acknowledge is that the reality of attending a trial—where they are in many ways positioned as being ‘on trial’—and having to recall an immense bodily and mental trauma whilst on the stand may often expose rape victims to social ostracism and denial. Additionally, in many cases the absence of corroborative evidence in a rape case is enough to tip the scales in favour of the defendant, yet this is the paradoxical nature of rape: sometimes all you have is your word against theirs. Literature and Human Rights scholar Eleni Coundouriotis unpacks the mechanics of this tension in her article “You Only Have Your Word”, making it evident that “the sexual assault complainant’s testimony has unique significance because it carries most of the burden of proof on the issue of consent” (366), and, despite being a witness to the crime being committed, their testimony can be easily dissected within a trial, and positioned to the judge or jury—depending on the case—as not true by its very nature of being a story. For legal truth, however, it must be ‘beyond reasonable doubt’ as to whether the crime was committed: a difficult thing to determine in issues of consent, as “the defence doesn’t have to prove she did not consent[,] you just have to point out that HE DID NOT KNOW there was NO CONSENT. That it was reasonable for him to think it was okay” (Miller 40). The ultimate difficulty in trying a rape case is that there will almost always be ‘reasonable’ doubt as to the events that took place. The audience sees Tessa process this in real time after she is raped, where she acknowledges the fallibility of the law—and her own previously espoused beliefs—in the attempted prosecution of alleged rapists, and in protecting the women who have been raped.
It is only when Tessa faces the same system as a victim, complainant, and witness that she begins to question whether the legal system deserves her unwavering faith. Tessa realises while giving her own testimony that it is more likely that “the events described by the victim in her testimony are usually ambiguous” (Harrison et al. 27) and thus less likely to fit the ‘rape script’ expected of them. Tessa once believed that the peripheral details of a rape (such as what the victim was wearing, how her hands were positioned, how often she attempted to say no, how much she had to drink) are key to determining the legitimacy of the rape occurring. Yet as Tessa herself learns: “as a victim-survivor, let me tell you that the rape and perpetrator are vividly recalled, the peripheral details not so clearly” (Miller 94). Only upon experiencing this first-hand is Tessa—and by extension the audience—able to see that the legal system is not actually fair and just in all cases. Miller emphasises this arduous process for rape victims, reinforcing that it can be re-traumatising to “relive their humiliating experience and then doubted as to their motives for reporting a hideous crime against their person” (7). As the audience go on this journey with Tessa, they are exposed to the idea that to establish better personal and legal outcomes for rape victims, we must reshape the way in which we not only try rape cases, but how we perceive victims themselves.
Tessa’s rape is portrayed as emblematic of a larger societal issue that is rooted in the structural systems that have long favoured those accused of sexual assault, rather than those victimised by it. Andrew Taslitz captures this when he states that “despite several decades of a renewed women’s movement and increasing attention to the problem of rape, judges and juries continue to be sceptical of rape, demanding greater proof than for many other types of crimes and demonstrating deep suspicion of victims” (6). Prima Facie shows the law’s inability—shaped by preconceived rape stereotypes coupled with complex patriarchal gender dynamics—to try rape cases in a way that accounts for the lived experience of women and the complicated nuances of rape. Prima Facie proposes that the law’s inadequate grasp of the victim’s mental state after the event, and inability to find ways to interrogate or prosecute the accused in a manner that protects their victims, are to its detriment. This is not to say that the solution for rape cases is to absolve victims from having to testify about their experience, but to explore other methods for pinpointing the truth without re-traumatising victims. In the writer’s note of Prima Facie, Miller reinforces this idea when she posits that “for Tessa, seeing the law for what it is, an imperfect human construct, constantly evolving within social changes, frees her to find her voice and call us all to action” (9). Prima Facie does not attempt to provide solutions, but challenges us to consider how we are complicit in the systems that do not protect some of its vulnerable members, and thus ask ourselves what we can do to reimagine the way society could and should change for the better.
What Prima Facie does successfully is to politicise the criminal justice system to question our ability to evolve as a society if we are effectively unable to interrogate how the law is failing its most vulnerable. Miller builds a relatable and engaging narrative of an individual who understands and supports the system but is confronted with the reality that she is unable to receive justice within this system. In doing so, the audience is presented with a subversive rape narrative—that is, a narrative in which the patriarchal structures that protect and uphold rape culture are being interrogated and challenged to reveal their flaws and demand socio-cultural change—that is not only hard to ignore, but one that challenges us to consider how these systems are working against us to impede our achievement of individual and collective wellbeing. Roeder captures the nuanced power of subversive rape stories filtering into social conscience, asserting that “the continued construction—and the ethical reception—of rape narratives … can not only help victims of violence regain control of their own experience but are valuable in expanding narrowly conceived social constructions of what rape victims ‘are like’” (27-8). Miller’s play positions the audience as witness to a relatable, witty, and intelligent woman as the victim of such a crime who can rebuild herself in the aftermath, despite the system’s fallibilities and inclination to silence and erase her experience.
Like the audience member who sat beside me at Prima Facie’s West End debut, and who had such an emotional reaction to the play’s subject matter, it is easy to see how bearing witness to Tessa’s rape and the subsequent trial is vital. It can generate necessary discourse about the value in challenging these systems to promote individual wellbeing for victims of sexual assault, and by extension, push us towards creating a better, more just society. Tessa’s experience in the court room is “shaped by the male experience, its cases decided by generations of male judges and its statutes legislated by generations of male politicians” (Miller 7), which she highlights can fail to accept a victim’s testimony as truth if it does not fit within the patriarchal rules of ‘rape’. The audience are encouraged through Tessa’s story to consider their own complicity in such systems, as a direct result of societal misconceptions about rape and rape victims being shaped by the male—or patriarchal—experience. The audience are presented with multiple rape narratives in Prima Facie, leading us to see Tessa’s trial, testimony, and cross-examination, aptly titled in the play as “the Silencing” (Miller 81), as the hardest to watch. Miller weaves a complex tapestry, which reminds us that fundamentally,

each story of rape varies in its particulars; there is no one narrative that can contain these explosive and singular moments of disruption. Yet, placed beside each other, these experiences … function as a reminder of the complex power associated with not only the telling, but the hearing, of such stories. (Roeder 28)

After the audience is led to this conclusion, the play’s voice of reckoning demands of them that something must change—and that this change begins with them.
Miller does not ask this only of the average theatre-goer, but of those who have the power to make a difference. For its opening run with Griffin Theatre Company in Sydney, Prima Facie staged a one-night performance specifically for female judges, barristers, solicitors, lawyers, and politicians, followed by what Miller describes as “a long and exciting discussion where played out before me was an authentic intersection between art and social change” (Miller 8). Miller saw the positive reception to the play as “a beacon of hope for future generations” (Miller 8), as she witnessed the Law Reform Commission attend a matinee, and a series of boys’ schools attend the production. Additionally, many performances internationally and in Australia have been followed by poignant Q&As, positioning this play as a site for political and social change. This is achieved by placing the production team alongside professionals within the field of law to promote these discussions. Miller saw the potential for this play not only to challenge social perceptions of rape held by people within society, but also as a driving force for enacting real and tangible change to the systems by generating discourse with those who, like (the fictional) Tessa, work within such systems. Similarly, for its West End debut, Prima Facie collaborated with The Schools Consent Project, gifting tickets to partner school groups, providing support to students who attended, and donating some of its profits to this not-for-profit organisation. The founder of The Schools Consent Project, Kate Parker, spoke of this collaboration as crucial, in that

the play shines a critical spotlight on the themes of consent, the criminal justice system and the female experience – topics we discuss daily with young people in classrooms across the country in our lawyer-led workshops on consent. The production is radical for a West End stage, as is its willingness to have a wider community reach. We are very excited about the impact of this partnership on the behaviour and thinking of the young people we work with. (qtd. in Wood, par. 3)

The targeted community outreach linked to its West End run has propelled Prima Facie’s impact beyond the theoretical—or fictional—and into the practical, promoting new ways of thinking about the systems within which society operate, and encouraging those who will effectively dominate the system’s future to consider ways in which we can change.
The collective wellbeing of society and its individuals can be brought about by the types of theatrical narratives that have emerged in the contemporary era, like Prima Facie, as it encourages a necessary discourse about the pervasiveness of rape and the fallibilities of the (still) patriarchal systems we have in place through which to examine and test accusations of this kind. This fallibility is preventing society from becoming better; improving for the greater good of all who belong to it. For us to do so, we must consider how our collective complicity in such systems has only contributed to its success in neglecting rape victims at their most vulnerable. Lester Brathwaite captures this eloquently in his review of Prima Facie’s Broadway review for Entertainment Weekly when he writes: “the emotional and physical toll of a performance like this, and the truths it brings to light, is akin to a public service” (par. 16). The play and performance’s ability to reveal the layers of oppression that sit beneath the surface of society and force the audience to look within are powerful, and potentially transformative.
References
Bix, Brian H. "Linguistic Meaning and Legal Truth." Law and Language: Current Legal Issues. Vol. 15. Eds. Michael Freeman and Fiona Smith. Oxford: Oxford UP, 2013. 34-44.
Coundouriotis, Eleni. “‘You Only Have Your Word’: Rape and Testimony.” Human Rights Quarterly 35. 2 (2013): 365–85.
Daly, Kathleen, and Brigitte Bouhours. “Rape and Attrition in the Legal Process: A Comparative Analysis of Five Countries.” Crime and Justice 39.1 (2010): 565–650.
Donat, P., and J. D'Emilio. “A Feminist Redefinition of Rape and Sexual Assault: Historical Foundations and Change.” Journal of Social Issues 48 (1992): 9–22.
Fitzpatrick, Lisa. “Signifying Rape: Problems of Representing Sexual Violence on Stage.” Feminism, Literature and Rape Narratives: Violence and Violation. Eds. Sorcha Gunne and Zoe Brigley Thompson. London: Routledge, 2010. 154–165.
Fraser, Courtney. “From Ladies First to Asking for It: Benevolent Sexism in the Maintenance of Rape Culture.” California Law Review 103 (2015): 141–203.
Harrison D.H. Lee, Jason M. Tangen, Blake M. McKimmie, and Barbara M. Masser. “Guided by the Rape Schema: The Influence of Event Order on How Jurors Evaluate the Victim’s Testimony in Cases of Rape.” Psychology, Crime & Law 29.1 (2022): 25–55.
Herman, Dianne F. “The Rape Culture.” Culture 1.10 (1988): 45–53.
Miller, Suzie. Prima Facie. London: Nick Hern Books, 2022.
Roeder, Tara. “‘You Have to Confess’: Rape and the Politics of Storytelling.” Journal of Feminist Scholarship 9 (2015): 18–29.
Sehrbrock, Joachim. “Social Justice on the Couch: Collapse and Repair of Social Thirdness.” British Journal of Psychotherapy 37.4 (2021): 673–689.
Spohn, Cassia. “Sexual Assault Case Processing: The More Things Change, the More They Stay the Same.” International Journal for Crime, Justice and Social Democracy 9.1 (2020): 86–94.
Taslitz, Andrew E. Rape and the Culture of the Courtroom. New York: NYU Press, 1999.
Taylor, Shannon. “Sexual Assault and the Law – a Diary of a Victim/Survivor's Experience.” Women against Violence: An Australian Feminist Journal 5 (1998): 64–72.
Tidmarsh, Patrick, and Gemma Hamilton. “Misconceptions of Sexual Crimes against Adult Victims: Barriers to Justice.” Australian Institute of Criminology: Trends & Issues in Crime and Criminal Justice 611 (2020): 1–18.
Ullman, Sarah E. “The Social Context of Talking about Sexual Assault.” Talking about Sexual Assault: Society's Response to Survivors. Washington, DC: American Psychological Association, 2010.
Wood, Alex. “West End Prima Facie with Jodie Comer Partners with Schools Consent Project.” WhatsOnStage, 15 Mar. 2022. <https://www.whatsonstage.com/london-theatre/news/west-end-prima-facie-jodie-comer-school-consent_56107.html>.