Getting it (unfortunately) right

Content warning: this article contains real-life descriptions of sexual violence and abuse 

In 2021 I first watched and wrote about Prima Facie when it was on stage at Queensland Theatre. At the time I fought hard to specify the focus of my response; my gut reaction was to throw out a net and capture the sprawling sense of injustice swirling around our society. I wrote:

It has been just over three years since the first opening night of Prima Facie at Griffin Theatre in Sydney. The #MeToo movement may have hit the global mainstream in 2018, but it’s fair to say the impact has been more acutely felt in Australia in 2021. Former Attorney-General Christian Porter is still an MP and it seems like there will never be an inquiry into the allegations made against him. We don’t yet know if the man Brittany Higgins accused of sexual assault will be charged (let alone found guilty) and we may never know who ordered the office in which the event allegedly took place to be steam cleaned. Tens of thousands of people around the country marched for justice in March but our demands were not heard or answered. The Prime Minister Scott Morrison said we were fortunate to live in a country where we weren’t shot for marching, because ‘elsewhere, protesters are being met with bullets’.

There are also glimmers of hope. In 2018, the year Prima Facie won the Griffin Award, Saxon Mullins spoke out about her years-long ordeal through the courts, up against archaic consent laws, and the New South Wales Attorney-General Mark Speakman ordered a review the very next day. In May of this year Speakman went one step further than what the New South Wales Law Reform Commission recommended, and committed to an affirmative model of consent. I was there in the room as he made the historic announcement: it’s still up to the prosecution to prove everything beyond a reasonable doubt, but if a defendant wants to claim that they had an honest and reasonable belief the complainant was consenting, the defendant will need to have actually said or done something that led them to have that belief. New South Wales is now a leader in this space. My fingers are crossed the arrival of Suzie Miller’s powerful play will coincide with progress in Queensland too.

It's astonishing to think of what has transpired in the last two years, and it’s frustrating to consider what we’re still waiting for. The trial against Bruce Lehrmann for the alleged assault of Ms Higgins was aborted because someone in the jury room had to go and ‘do their own research’ about how often women lie about assaults. Then, the director of public prosecutions in the ACT said there couldn’t be a retrial because it put Ms Higgins’ health and wellbeing at risk. It was a very public acknowledgement of what survivors had been saying for years: stop telling us to come forward when the system hurts us this badly.

Sheridan Harbridge as Tessa Ensler in Prima Facie. Photo: Brett Boardman

In Suzie Miller’s play our anti-hero, Tessa, goes to the police station and thinks of how she would really prefer to speak to a woman officer, but none are on duty, and she’s not sure she’ll have the strength to leave and come back again, so she sits down with the gruff man. Tessa waits two years and 33 days, from the assault to the trial. The cross-examination is, of course, brutal. I’ve been through all that myself, and I can say with absolute certainty that it was uncanny and uncomfortable to watch this play because Miller gets it all so very, unfortunately, right.

While this work is a lot about survivors’ experiences, it’s also a scathing indictment of the legal system. I wrote in 2021:

I wonder when in time – I mean in the history of the British common law system and its violent arrival in Australia – the farce of the law being ‘fair’ entered public rhetoric. As Dickens wrote in Bleak House, ‘The one great principle of English law is to make business for itself.’ Historically the general public have been right to regard the legal ruling class with suspicion. Yet these days, when people are publicly accused of criminal conduct, the screaming replies come: ‘He has a right to a fair trial!’ I wonder what trial process they have in mind. Because there’s no trial process in Australia, especially not for a sex crime matter, that is ‘fair’ for anyone. A defendant having to sit in a dock can be prejudicial. Trusting that jurors won’t Google anything when they go home is absurd. Statistically speaking, people think women tell lies more than men do, and people who speak in accents aren’t trustworthy. By the time you enter into a courtroom, everyone has lost. It ought to be a last resort, and acknowledged as a terribly faulty process, in constant need of improvements and bettering. But lawyers are fantastically good at making business for themselves, and the system is working for them, and anyways, they’re just ‘vessels’ and ‘tools’ and ‘voice pieces’. It would be crazy to suggest that the people doing the law affect the way the law is done! Absurd to suggest that those who benefit from a system have a corresponding obligation to leave it better than how they found it!

It’s fortunate for Melbourne audiences that Sheridan Harbridge will be returning to the role of Tessa. She walks the tightrope of black humour – the barrister’s default – with acidic specificity. To watch the mighty made small, to see her pride crumble, is agonising. Harbridge has been returning to Tessa for years now too, watching the same politics I watch, reading the same news updates I read. In a way, Prima Facie has born witness to some of the most turbulent years of gender politics in Australia in modern history. It was born of these issues, has fed into the response, and been fed by it in turn.

The show keeps selling out because we haven’t yet ‘solved’ these problems. Our understanding of the work grows deeper with each season. Thousands of Australians watching Brittany Higgins speak on the front steps of the courthouse in 2022 would have heard and understood for the first time just how brutalising the journey to justice is. This year a new audience will stream into theatres to hear Tessa’s story and they will feel how very alive these issues are. They will know the names and faces of women who are fighting for change. They will share the sprawling sense of injustice.

Progress will never be guaranteed, freedoms do not strengthen on a reliable upward trajectory (recent human rights regressions in places like the US and Afghanistan are proof of that) but giving up or getting complacent are luxuries we cannot afford. Every time I see another season of Prima Facie showing I feel heartened that more and more people want to see and hear these truths. As Miller’s words reach and spread to new cities the tide is turning. If we have the stamina to stay mad, the truth will out. It’s not about winning or losing, it’s not really even about a verdict, it’s about changing a culture. And works like this can do that.

If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, Beyond Blue 1300 224 636 or Rainbow Door 1800 729 367.