Lawyer-turned-playwright Suzie Miller set out with a few goals while writing her Olivier-winning play Prima Facie. One of them was to get people to really take a critical look at the legal system. “Once you see it, you can't unsee it. That is the reality of race, gender, and class before the law—that once you see the endemic unfairness, you can't not see it anymore. It seems to be everywhere,” she says. Using her knowledge and experiences working in the legal system until she left it over 10 years ago, Miller knows that exposing the law also means making it less of a “mystery to most people.” As she points out, the law was ostensibly set up to be on the behalf of the people. But which people set it up and who it favors are at the heart of Prima Facie.
The one-woman show follows Tessa, a woman from a working-class background in Liverpool who has worked hard to rise through the ranks of British education to become a brilliant defense barrister. Through what’s called the cab rank rule (which is the obligation to accept cases a barrister can competently take on), Tessa is often assigned to defend men accused of sexual assault. But after she ends up in the witness stand herself, Tessa is forced to face the failures of the legal system that she has dedicated her life to. Killing Eve’s Jodie Comer, who stars in the show at the John Golden Theatre where it plays through June 18, received a 2023 Tony nomination for her performance.
Since originally premiering in Sydney, Australia in 2019, Prima Facie been translated into nearly 30 languages, and has been performed around the world—including an upcoming production in Germany.
The play was partially inspired by Miller’s own experiences as a lawyer and the stories she’s heard over the years from friends, family, and clients. “When I was at law school, many of my girlfriends had really bad experiences, but didn’t having language to talk about what happens on a date when something goes into a different zone,” she tells Playbill.
In her work with sexual assault survivors while working in human rights law, Miller often took up to six statements a week, recalling, “All of them were the same, this sort of shock at this happening, and it happening sometimes in the realm of a relationship or with a family member.” For the cases that made it to court, Miller remembers how traumatizing the cross-examination was; the defense lawyers would accuse the women of lying for all sorts of reasons like “revenge fantasies or being upset that the person didn't want to take it further or wanting to get ahead at work.”
Since then, Miller has wanted to shed a light on the legal system’s failings and create change. “I realized that first, the community has a problem. And second, I was struck by the fact that it wasn't really a justice system in the same way that I wanted it to be.”
Following the #MeToo movement, Miller saw how survivors stepped forward to share their experiences and then turned to the law for justice, but “the legal system was still very behind.” She continues, “I thought someone needs to expose the legal system. And so I found this character, and I show how much she loves the law and the legal system. And then show how it lets her down when she tests it from the other side.”
Miller does admit that to be a good defense lawyer means you have to believe in the legal system and its promise of justice, even though there’s a line between “truth and legal truth.” But, “having said that, the line is drawn in the wrong place.”
There’s a reason for that: the law was written by, and practiced only by, men for centuries. “They wouldn't think about this from the perspective of ‘This happened to me,’ because they see it from the perspective of the poor perpetrator. They go, ‘Well, obviously, he didn't realize so why should he be held to account?’”
Unlike other crimes, as Miller points out, the crime scene in a sexual assault scenario is someone’s body. Miller says the common defensive conception is, “He just assumed he was allowed to.” At the same time, “Why are we assuming that?” Miller says rhetorically. The playwright rejects the often-heard reaction of, “do I need to sign a contract beforehand?” with a simple rebuttal: “You'd hope that someone will say, ‘What do you like? What gives you pleasure?’ You just have to check in and go, ‘Is this OK?’ And listen to the answer.”
Set in the U.K., the specificity of the play’s setting also helps heighten Miller’s intersectional look at gender and class. Comer, who hails from Liverpool, has a Scouse accent. Throughout the performance, she slides in and out of her natural accent into something that sounds posher and London-based to fit in among her colleagues. It’s a nuance which Miller has seen play out in the courtroom herself, and it’s in part because of how the British legal system itself is biased. As Miller puts it, social hierarchies such as class, race, or gender comes with stereotypes and that has an impact on “who has the right to have an accusation” and who will be believed.
When Prima Facie was staged on the West End, Miller was nervous about the response it would receive from lawyers, judges, and other members of the legal community who she still has relationships with. Thankfully, her fears were proven wrong. “What really shocked me is how much the legal system has embraced it. We had a lot of judges from the Old Bailey, the biggest court in London, and a lot of barristers come see it,” she remarks, with surprise.
The play has catalyzed changes in the legal system. A live capture of Comer’s performance is now being distributed among new judges for mandatory viewing as part of their training. It’s being used as an aide in teaching that there are actually four survival responses during sexual assault situations: the commonly known fight or flight, and the more recently recognized friend/fawn or freeze.
Fawn or friend, as it’s being called, is when someone tries to play nice, believing that they can avoid a conflict and escape the situation by creating a sympathetic connection with a potential threat.
The other survival mechanism, freeze, is what it sounds like: the reaction to not do anything and just focus on getting through what’s happening and disassociating from it as much as possible. “All these women said, ‘I don't know, I just froze’ in their statements, but I didn't realize that was a legitimate response to terror,” Miller recalls from her time as a lawyer.
If in the moment, a survivor stays quiet and still, or tries to play nice, it’s a natural response of self-protection. As such, it should not undermine their case. That guidance has already made an impact, says Miller. “Another judge called me and said, ‘I write the directions on what the judge has to say to the jury on sexual assault. I've now changed it after seeing the show. That direction now says, just because the evidence doesn't come out clean and packaged doesn’t mean that they're not telling the truth. That's part of trauma.’”
Says Miller, “I might have spent the rest of my life as a lawyer, and I never would have achieved that one big change.” The live capture of Prima Facie is also being used via 10-year free lease in U.K. schools as part of sexual education.
Education is deeply important to Miller and the production; Prima Facie has partnered with U.K.-based charity The Schools Consent Project, which seeks to educate young people on issues surrounding consent and sexual assault by sending lawyers into schools. The play’s part in helping to spark change has come at the right time, Miller says. Though she believes she’s only a tiny part of this larger conversation, “it’s a conversation that I couldn't have had 10 years ago, because no one would have heard it. I feel proud of theatre for being so part of contemporary society that we can talk to the power holders, and they will come and hear it.” And she hopes men, in particular, hear Prima Facie’s message. “My cry to men is get educated and infiltrate the all-male zones that you're in as an ally, because you believe this is right. And if you don't believe this is right, then listen harder.”
Miller is also a part of TESSA, a group dedicated to examining serious sexual assault law. “I was on a Zoom with, like, 100 barristers in London, who are all on the project, putting together submissions to talk about the obligation to check in and how we could change the law.” They are proposing that once there’s a probability that someone didn’t consent, the defendant has to explain why they believe they had consent. “You can't just say, ‘Oh, well, he just believed it was OK.’ You're going to go, ‘But, why did he believe that was OK? Were all these actions [to gain consent] taken?’” she explains. The group is currently discussing how they can advocate to lawmakers for shifting the paradigm, from a survivor proving they did not give consent to a defendant explaining how they got consent. The former currently underpins much of legal cross-examination.
Since quitting law to pursue theatre full-time, Miller hasn’t looked back: “I was offered a residency at the National Theatre in London at the same time I was offered a judicial position in Australia. It was the fork in the road, and it was so clear to me what I wanted to do.” Miller completed a residency at the National Theatre in 2009 and again in 2011. But, that doesn’t mean she’s left the courtroom completely behind. “We get our jury members from the general public,” she points out. With that in mind, she treats the audience like one in how she wrote Prima Facie. “The audience sit there, sort of as the jury, but are privy to the fact that it actually happened, no doubt about it. And then they see how the doubts are placed in such an unfair way."
For Miller, the hardest part about the play is not seeing what happens to Tessa. It’s seeing how she’s demolished, and the optics of her experience are twisted in court to make the perpetrator look innocent. Miller admits that Prima Facie may be triggering for survivors of sexual assault, which is why the play has a content warning. “If there's trauma onstage, there has to be a really good reason. And the best reason is to engage audiences in the possibility of change,” says Miller. As she looks to create both legal and social change, talking directly to the public and future jury members is one of her greatest opportunities—an open dialogue, as opposed to the closed doors of the courtroom. “Theatre is such a great tool, because as a community we start to have a conversation.”