Men created our legal system, writes Joanna Wane. Now women are dismantling it.
If you’ve ever doubted that theatre still has the power to change the world, I hereby admit into evidence Prima Facie (and no, for anyone who understands Latin legal terms, that’s not a pun). Let’s call it Exhibit A.
This extraordinary one-woman play, recorded by National Theatre Live during Killing Eve star Jodie Comer’s sellout run on London’s West End, is now compulsory viewing for high court judges in Northern Ireland before they’re admitted to the bench.
The central figure is a whip-smart criminal defence lawyer who finds herself being eviscerated on the witness stand after she’s raped by a colleague. A group of barristers at London’s Old Bailey were so disturbed by its depiction of the trial that they formed an initiative in her name, Tessa (The Examination of Serious Sexual Assault), to consider the need to update existing legislation in the UK.
Changes have already been made to the directions a judge is required to give to the jury in sexual assault cases. If a complainant struggles to give evidence that presents a cohesive account of what happened, it doesn’t necessarily indicate they’re lying. It may mean they’re traumatised. “That’s really beautifully demonstrated in Prima Facie,” says Wellington-based director Lyndee-Jane Rutherford, whose new production of the play begins a nationwide tour at the Hamilton Arts Festival this month.
“Here we have a criminal defence barrister who is at the height of being able to advocate for herself and even she can’t articulate what happened or get around how they are questioning her, because she’s being retraumatised in front of her rapist. What about those who aren’t able to advocate for themselves and don’t have support systems around them? Tessa has a shower straight after [the assault and also deletes a text he later sends her]. If she does that, how can a woman who knows nothing of the law know not to do those things?”
In New Zealand, the way such cases are approached has been relatively progressive since the Sexual Violence Legislation Act was passed in 2021 (see below). Complainants can give evidence through a live audio-visual link and restrictions have been placed on their previous sexual experience being raised in court. Judges are required to dispel myths and misconceptions about rape and sexual violence that might colour the jury’s verdict — for example, that women are prone to making up rape accusations as an act of revenge and that it’s not credible someone would stay in an abusive relationship.
Still, would you encourage your daughter or anyone else you love to put themselves through the ordeal of a trial? There were signs of a sea change in the system last year when the Mama Hooch brothers, Danny and Roberto Jaz, were sentenced to a long stretch in prison after being convicted on multiple counts of drugging women at their Christchurch bar and sexually assaulting them. But it took a decade for anyone to be held to account in the notorious “Roast Busters” case, where a group of young men took videos of themselves having sex with drunk girls, many of them underage. Only two out of 25 alleged victims went through the court process. Two offenders found guilty were given permanent name suppression and home detention.
A Ministry of Justice report released last August showed only a fraction of sexual violence complaints make it to trial — and more than 90 per cent of incidents weren’t reported to the police at all. Statistics like that make Rutherford’s skin crawl. “One out of three women are sexually assaulted,” she says. “Of those who are assaulted, one out of 10 will report it. And of those who report it, one out of 10 will get a conviction. The hard thing is encouraging people to fight for justice when that is the outcome.”
Prima Facie was written by Australian playwright Suzie Miller, a former lawyer herself who rode the wave of the #MeToo movement in 2019 with her acclaimed premiere season in Sydney. Comer’s West End production won Laurence Olivier Awards for Best Actress and Best New Play and last year, the show opened on Broadway. (Those Aussies are having a moment right now, with Succession’s Sarah Snook receiving rave reviews in London for her bravura solo performance in The Picture of Dorian Gray. An adaptation of the Oscar Wilde story by Sydney Theatre Company’s artistic director Kip Williams, it was the smash hit of last year’s Auckland Arts Festival, with EJ Norvill owning the stage).
Miller, a former human rights lawyer and advocate for children, was on maternity leave when she began working for a youth legal centre based in Kings Cross, Sydney’s red light district. There, she took on cases defending the homeless, drug addicts and sex workers, and pursuing compensation for sexual assault victims. In a recent interview, she told the Sydney Morning Herald that sometimes years had passed since the assault happened, but the aftermath was the same. “Incredible self-blame, shame, embarrassment. They would take drugs to block it out; it affected their sexuality and sense of power in the world. I would go home massively traumatised.”
Those experiences inspired her first play, Cross Sections, in 2005, which she wrote as a sideline gig while still practising law. A few years later, Miller faced a crossroads when she was invited to become a magistrate and the National Theatre in London offered her a one-year residency at the same time. She and her husband, a King’s Counsel, packed their bags and moved to the UK with their two young children. Not that she was quite done with the law yet. Miller says she knew one day she’d write a play about sexual assault and how the justice system is skewed towards a male perspective of the world, rather than the lived experience of women.
The phrase prima facie means “on the face of it”, but Miller notes that the stories of women who are sexually assaulted are not easily turned into what she calls legal truth. In most cases, the violence they’re subjected to is done in private, by someone they know. Consent is difficult to disprove; one of the discussions that have arisen from the play is whether the burden should not only be on the complainant to prove there wasn’t consent but on the offender to give an account of why they believed there was.
During Prima Facie’s Sydney run, a special performance was held for women in the legal profession who were then invited to attend a Q&A session. NSW Governor Margaret Beazley, a former president of the New South Wales Court of Appeal and the first woman to hold that position, was among them. Post-show discussions were also held at Wellington’s Circa Theatre last year when Rutherford staged the play with actor Mel Dodge. That month-long season sold out and Dodge, who received standing ovations for her “electrifying” 100-minute performance, is back for this year’s tour.
Rutherford and Dodge have collaborated before, on an adaptation of Emily Writes’ book Rants in the Dark and Dodge’s own solo show, Miss Bronte, which they toured in Australia with Dodge’s 10-month-old son in tow. An actor herself, Rutherford describes Dodge’s performance as a master class as she navigates multiple characters — including the man in the dock — on an emotional journey across 18 intense scenes.
This is Tessa’s story, presented from her perspective, but there are grey spaces within the narrative that reflect its real-world complexity. One of the aspects undermining her case is that she’d previously had consensual sex with the colleague accused of raping her. And Tessa isn’t always a sympathetic character. In an early scene where she’s defending a man on trial for sexual assault, she grills his alleged victim about how much she’d had to drink and whether she helped to remove her clothing. For her, the law is a game and she has played it ruthlessly. “We each tell a story,” she says, “and the jury decide which story is the one they believe.” Later, when the tables are turned on Tessa, some of her female friends are supportive. Others are not.
In preparing for the role, Dodge talked to sexual survivors about their experiences, including what is often an agonisingly long delay between the assault occurring and the case coming to court. The play is both emotionally draining and physically demanding. For the past few weeks, she’s been running regularly to stay fit and also preparing herself mentally. “It always felt a bit like I’m bracing to go into the middle of a storm,” she says.
“I spoke to a lawyer after one of the shows who talked about retraumatisation and how we have so much understanding now of what happens to the nervous system — the frustration of knowing all that science is available, but we haven’t made the changes necessary [to acknowledge that]. When I’m in character as Tessa during the trial, even I can barely think clearly. I feel we’re able to really get inside that space of what it feels like for her, with her colleagues and the perpetrator’s family watching. But she’s also fighting for clarity and I think that resonates for a lot of people in the audience.”
While it’s not directly addressed on stage, the play has provoked debate over whether sexual assault cases should be judge-only hearings rather than trial by jury. Last year, the Wellington Women Lawyers Association organised a members’ trip to the Circa show, and committee member Isabella Clarke was invited to a panel discussion that included former District and Youth Court judge Carolyn Henwood at the Australian High Commission, which co-sponsored the production.
Clarke, who’s a member of the Kate Sheppard Chambers, says juries represent a broad span of the population and verdicts can be swayed by people with entrenched, regressive views. However, she’s quick to hold the legal profession to account, too. “As lawyers, you become, in a way, indoctrinated in these systems of power and precedent. This is the way that we do things, and this is the way things need to be done.
“When you think about the origins of our legal system and the laws we’re still influenced by today, often they were made in circumstances where some voices and some lives were seen to be less credible and less valuable than others. And there was an incentive by the people making those laws to protect themselves and others like them from consequences. There are a lot more women in the law now and a lot more women judges, but we still have the legacy of a system that was created without us.”
The need for more nuance in how sexual assault cases are handled is another concern often raised. Producer Yael Gezentsvey says victims don’t always want the offender sent to prison. “But they want them to admit what they did.” Prima Facie raises some thorny issues and Gezentsvey is impressed by the way young people in the audience engage with the after-show discussion.
“That gives me hope for the future, that this new generation can look at things objectively and say, ‘Hang on a second, where did these laws stem from? Are they still serving us now? Is there a better way to do this?’ The beauty of the arts is that we are honoured to hold the space to ask those questions. And we hope they are heard and assessed, and the answers and change flow from that.”
Sexual assault and the NZ justice system
Designed to address the reluctance of sexual violence complainants to undergo the court process, key changes introduced by the Sexual Violence Legislation Act 2021 include:
- Complainants can provide their evidence through a live audio-visual link, pre-recorded video, or in the courtroom without seeing the defendant or specified individuals.
- All parts of the complainant’s evidence can be pre-recorded, with any unrecorded evidence being recorded during the trial for potential use in a retrial.
- Restrictions on presenting the complainant’s previous sexual experience unless directly relevant.
- Judges are required to dispel rape myths and misconceptions about sexual violence through jury directions.
- Judges have increased authority to clear the courtroom during a complainant’s evidence or victim impact statement.
* Prima Facie returns to Wellington’s Circa Theatre for a return season, September 10-28, then heads to Nelson, October 31-November 1 at the Theatre Royal, before wrapping up the tour in Christchurch, November 6-8, at the Isaac Theatre Royal. A local criminal defence barrister will join a Q&A panel discussion after designated shows. The tour has been supported by the Michael and Suzanne Borrin Foundation. For bookings and tour updates, see primafacienztour.co.nz
Joanna Wane is an award-winning senior feature writer in the New Zealand Herald’s Lifestyle Premium team, with a special focus on social issues and the arts.