Last week I went to a screening of the play Prima Facie. Jodie Comer gave a fantastic performance in a terrific piece of theatre. But it was theatre. Was it true to life? Did it really reflect the reality of a trial for rape? I spent over thirty years working in the Criminal Justice System as a barrister and I defended and prosecuted a large number of rape trials. I would agree with the character ‘Tess’ that the legal profession is male-dominated, it’s too slow even more so now but… and it’s a big but, I thought it showed a misunderstanding of the trial process. I didn’t glorify my record in successful defences of men accused of rape, rather I worried that the complainant had been misled about what would happen in court. The purpose of a trial is not to find the truth but to establish the facts on the basis of evidence given in the courtroom. The jury decides on those facts and then measures them against the definition of the crime to arrive at a verdict either guilty or not guilty. Note, the defendant is not found to be innocent. I don’t believe that today the jury are are not aware of the arguments put forward in play that they are unduly influenced by outdated ideas about how a witness might behave. Indeed they are warned against making assumptions of that kind by the judge in his summing up. Introducing psychological evidence as to how a woman might behave, I use might deliberately, is trying to substitute his/her professional judgement for the evidence.
Nor do I accept that every complainant has the same reaction as ‘Tess’. Some are tearful, some defiant and there was one who treated it as a joke. Cross-examination about the differences in the accounts they have given at different stages of the process is part of trying to establish the facts, but they are rarely about trivial matters.
There was no mention of the defendant giving evidence. No defendant has to go into the witness box but on the facts as they were portrayed in the play, I would have urged the defendant to give his account of their relationship and to say he believed ‘Tess’ was consenting. However, it may have exposed what I thought were weaknesses in his account of the events. A skilled prosecutor would have torn his case to shreds. Had he failed to give evidence the judge would have directed the jury they could hold that against him.
This play is just one person’s interpretation of a trial for rape and the attempt to give it authenticity by the short interviews with Emily Maitlis shown before the play was, in my opinion, misleading. I have used my experience to write a novel called Reluctant Consent which demonstrates a more nuanced approach than Prima Facie