Suzie Miller’s second act is putting survivors centre stage

Content warning: the following article discusses sexual assault.

The seeds of what would become Suzie Miller’s award-winning play Prima Facie were planted when she was in law school studying criminal law. Miller always thought she would achieve meaningful change as a defence lawyer. But in her ‘second act’ as a playwright and now novelist, Miller has impacted our collective understanding of sexual assault trials more than she ever could have imagined.

Watching the law operate in practice, Miller remembers thinking “there’s something a bit wrong about this”. This was particularly acute when considering sexual violence and issues of consent.

Miller saw the inherent flaws in how consent only had to be established in the mind of the perpetrator. This part of the law, she believes, was created according to a male perspective.

“The idea is to protect men from being accused of rape based on the idea that you can only rape if you know you’re doing it,” Miller tells FW. ”We don’t care whether she’s consenting or not. We only care whether he knew or not.”

Image credit: Sarah Hadley

Add to this the fact that proving it beyond a reasonable doubt is incredibly difficult – a truth borne out by the data. We only need to see the statistic that just *1.5 per cent of reported sexual assault cases result in a conviction (let alone the statistic that *87 per cent of sexual assault goes unreported) to understand that the system is not working for victim-survivors.

The issue of consent itself is also often framed around a male perspective.“Because [victim-survivors] don’t say no or react in a way a man would say no, they don’t take it on,” states Miller.“They don’t listen because we’re not speaking in a way they would during this circumstance. So much of it is framed around the male experience.”

A shift to affirmative consent laws is a positive move in this space – one that Miller explains as moving from “did he believe she consented” to “what did he do to get the idea that she consented?” But she still sees ‘rape myths’ and the way society views victim-survivors as partially at fault for what happened to them (see the classic: “what was she wearing?”) as something we need to overcome. “We don’t blame victims in the same way for any other crimes the way we do for sexual assault.”

Miller used the story in Prima Facie to challenge these commonly held misconceptions. The lead character Tessa is raped in her own bed by a male colleague with whom she’d had consensual sex earlier that evening. She was drunk and during her evidence, she misremembers events and the order in which they happened. Tessa, who we learn is a successful defence barrister with a deep understanding of the criminal justice system fails to perform her part of ‘the perfect victim’.

“If you ever see what women go through who end up on that stand… why anyone would do it for any other reason is beyond me.”

During cross-examination Tessa is faced with all the common tropes: she’s ambitious, she’s accusing him for an ulterior motive, it’s a fabricated story to get revenge for something else. “People are so desperate to find out how this could have happened with a man that they know, they think, well she must have done X, Y, Z,” Miller tells FW. “But the truth of the matter is that if you ever see what women go through who end up on that stand, I mean, why anyone would do it for any other reason than they truly believe they were sexually assaulted is beyond me.”

Tessa’s story is fiction based in fact. The 2021 National Community Attitudes Towards Violence Against Women Survey conducted by Australia’s National Research Organisation for Women’s Safety (ANROWS) shows that close to four in 10 Australians believe women use sexual assault allegations to get back at men and one in 10 believe a woman who is drunk when she is raped is partly responsible for the attack.

The legal system does not exist outside of our societal prejudices and our myths about rape and sexual assault. In fact, those biases are frequently validated and replicated within the system. In writing Prima Facie, Miller hoped audiences Tessa’s harrowing experience would look on her experience – and their own assumptions – with greater empathy than raw data would usually inspire.

It did. In fact, Miller has been surprised at the impact her work has had on the legal system – particularly in the United Kingdom, where the play prompted significant changes to the way sexual assault cases are handled.

“Some women just want accountability from the perpetrator. They want the man to hear how much what he did has impacted her.”

In Northern Ireland, a recording of the play is now mandatory viewing for judges before they join the bench. Judges and barristers from the Old Bailey, the central criminal court for England and Wales, came together to form a new organisation called TESSA, named after Prima Facie’s protagonist. It stands for The Examination of Serious Sexual Assault, and was created to update the country’s sexual assault legislation.

In the Broadway production, English actress Jodie Comer received critical acclaim for her portrayal of Tessa. The play garnered four Tony Award nominations, with Comer winning the Best Actress category.

Meanwhile, in what Miller calls “possibly the most important five minute phone call of my life”, she was contacted by a judge at the Old Bailey who is responsible for drafting jury instructions. After seeing the play, the judge rewrote the jury instructions for cases of sexual assault to incorporate some of Tessa’s words speaking to the trauma of both a sexual assault and the subsequent cross-examination for victim-survivors.

The impacts of Prima Facie on the legal system give Miller hope that things are changing, but she acknowledges that the system is still not set up to appropriately support victim-survivors or properly deal with sexual assault.

In the same way that crowds who watched Prima Facie later demanded change that honours Tessa’s experience, Miller believes the solution lies in listening to the victims and survivors impacted by sexual violence.

“Not all women want to go through the legal system and go through a criminal trial,” says Miller. “Some women just want accountability from the perpetrator. They want the man to hear how much what he did has impacted her. Women sharing stories make a really big difference.”

*Data from the Australian Bureau of Statistics’ 2016 Personal Safety Survey.

If you or someone you know needs support, please call 1800 RESPECT (1800 737 732) or the Sexual Assault Support Service on 1800 MYSUPPORT (1800 697 877)