Suzie Miller: Playwright of RBG: Of Many, One and Prima Facie on why the law must change

Suzie Miller is no longer a lawyer but she can’t stop thinking like one. The Australian playwright best known for her lauded and influential play Prima Facie will tonight be addressing a group of Victorian judges about sexual assault and how to change the system.

“When I was a lawyer, I would’ve given my right arm to have that audience,” she told The Nightly. “And I would’ve loved to have had this conversation 20 years ago. It’s interesting to me that after I left the law and became a playwright, suddenly everyone wants to have the conversation.”

Prima Facie opened in Queensland in 2019 but when it moved to London’s West End, it blew up. The one-woman show, then starring Jodie Comer, is centred on a criminal defence barrister who has spent her career defending men accused of sexual assault. Then one night, she is raped by a colleague, and she finds the justice system she devoted her life to becomes an enemy. A system built and defined by men, to judge women’s sexual assault experiences.

“This is a particular type of crime where the actual site of the crime is the woman’s body, the psyche that is so badly traumatised is the woman’s, and there’s this expectation that her evidence not only has to prove that the crime happened, but that she told someone for it not to happen,” Miller explained.

Off the back of the verdict in Bruce Lehrmann’s civil court defamation action in which Justice Michael Lee said, on the balance of probabilities, the former political staffer raped Brittany Higgins, sexual assault, consent and the legal system is a heated and resonant topic.

This is where Miller’s legal strategising comes in. “The fact that women go to the police and run a criminal trial where they get nothing out of it except to be validated. If they went to the civil courts instead and said, ‘My body was trespassed against and I have a tort action against this person for damages, they’re liable to not only get validation, they’ll probably also get a payout.

“That they choose the criminal justice system where there’s really not a lot for them to gain, and they’re re-traumatised again and again, is interesting to me because it says they’re not looking for money but for validation, for someone to have to own it. The women who accused Donald Trump of sexual assault went through the civil system and won because the standard [of proof] is lower.”

In Australia, nine of out 10 victims don’t report sexual assault crimes to the police. In NSW, 19 per cent of those who do see their cases proceed to trial, where only one-third result in a conviction.

Miller is among many who have put forward the idea that sexual assault cases within the criminal system need its own specialist court, “so that the conviction rates are not so ridiculous that it makes a joke of the system”.

The intersection of law and art is where Miller thrives. Growing up in Melbourne, she moved to Sydney to study law and then worked in the field for many years while simultaneously nurturing a passion for writing for the stage.

“I wouldn’t have written the types of plays I’m writing had I not actually been a lawyer in the past, working with people that didn’t have a voice, raising issues that were not part of the white, wealthy and particularly male section of the community,” Miller said.

Without that legal background, she also wouldn’t have written the critically acclaimed RBG: Of Many, One, which is currently touring nationally after an encore season in Sydney. This week, it’s playing in Canberra, with Melbourne, Brisbane, Parramatta and Perth to follow.

The Ruth Bader Ginsberg play was born during the lockdown when Miller cast around for an iconic woman to write about, who is “as big as all these men that get written about”.

The legendary American jurist and justice of the Supreme Court died in 2020 at the age of 87 after blazing a trail throughout her whole life.

The physically diminutive but intellectual giant Ginsberg was known for her fiery and meticulous dissenting opinions, as the US Supreme Court swung further to the right, as she was for the strides and progress she made for women and marginalised peoples.

Heather Mitchell, who Miller calls “the real deal”, gives a towering performance that sees her change her physicality and her voice to play Ginsberg from a teenager to an octogenarian, and carries the show as the lone actor on stage.

Ginsberg’s life and achievements have been well-documented, including in two films, but it was her final decision that, in some people’s eyes, tarnished her legacy — her decision to not resign during Barack Obama’s term, so she could be replaced by a younger progressive justice.

For Miller, that was the core drama of RBG: Of One, Many, the lunch with Obama during which he broached the subject. The consequence of her decision to remain was her death during Trump’s term which resulted in the appointment of a right-wing justice which ultimately led to the overturning of abortion rights when the court undid Roe v Wade.

“That was the most important part of the play because of the knot I had to figure out,” she said. “How do I celebrate someone whose lack of foresight, when they had so much foresight [about everything else] was this terrible situation?

“It occurred to me that she’s still a human being, and also no one saw that coming.

“At the end, I think you see her coming to terms with some of the decisions that she did make, but having said that, all her [dissenting options she wrote] because she didn’t resign are the best dissents ever. They’re amazing.

“And they’re filed away for whenever the right president comes along that wants to read them and have an idea of how to make the world better.”

That’s something Ginsberg understood and an idea that Tessa, the character in Prima Facie made a plea for as well — the law changes and evolves. It’s not a static beast but one that can, and should, work for those who need it the most.

Art can help articulate the argument and move people to empathy where sometimes the law falters.

“Judges would call me after they’d seen [Prima Facie] and say, ‘I saw it really clearly and now I want to make a difference’. If I’d known that 20 years ago, I would’ve written plays!”

RBG: Of Many, One is touring nationally