• Elizabeth Dennis-Harburg

The Art of Change


I love the theatre. It makes us laugh, and cry, providing an escape from the world. But for me theatre is at its best when it makes us think. Bertolt Brecht said “Art is not a mirror held up to reality, but a hammer with which to shape it”. Anyone fortunate enough to catch Jodie Comer’s standout performance of Prima Facie at the Harold Pinter Theatre this summer will agree that the piece does just that.


The story of Tessa will be all too familiar to many survivors of sexual assault. After dinner, drinks, and consensual sex with a partner Tessa is raped. She tells her partner to stop. He pins her down, holding his hand over her mouth. She is powerless to stop him. She gives up and just lets him. She goes to the police. But she knows it’s futile, her word against his. And as a criminal defence barrister she knows the legal system is against her.


Look to your left. Look to your right. One in three women will be sexually assaulted.


And of those who have the strength to come forward to the police only 1.3% of cases will be prosecuted.


In the 12 months to September 2021 170,973 sexual offences were recorded, an increase of 12% on the same period the year before. 63,136 of these cases were rape. 41% of rape victims withdraw their support for prosecution. Of those, 1/3 withdrew within the first three months of the offence being recorded.


It takes 782 days for Tessa’s case to reach the courts. She’s lucky. The median time between offences being recorded and the prosecution date is 1,020 days. During that time victims will give up their phones, subjected to a digital strip search. Some will have to continue working with their abusers, cooperating with them as parents, bumping into them in the community.


Students of criminal law will know the process is binary – was there a sexual act? Was there consent, capacity to consent, reasonable belief in consent? Yes, no, boom! An offence is made out under section 3 of the Sexual Offences Act 2003. Case closed right? Who could possibly argue with such clear logic?


The game of the trial.


Contrary to our intuition, trials are not designed to arrive at the truth. They are a game in which one side wins, and the other loses. Barristers don’t lose, they come second in the game. They create doubt, sympathy, a narrative, play with the optics. And often in the game the truth is side-lined. Defence lawyers never ask their client if they committed the offence. That’s not their job. Their job is simply to put forward their client’s case. Do they believe their client? That’s not the brief. Listen, construct the arguments, build the line of questions, play to the jury, win.


The real loser in the game of sexual offence trials is the law. Criminal law protects society from wrongs. Ask anyone who’s brought a sexual offence charge why they’ve come forward and the majority will say “I don’t want them to do this to somebody else”. Yet sexual offences are so deeply personal that our adversarial court system, with its game of not wishing to finish second, invariably results in unjust outcomes.


On the face of it, it’s time to change. And this piece of theatre makes that point loud and clear. It should be the hammer blow which shapes reality moving forward.


Changing the criminal law system is an enormous challenge, but there’s work we can do in the meantime to prevent sexual offences and violence against women and girls. The Schools Consent Project sends lawyers into schools to teach 11-18 year olds the legal definition of consent and rape. It aims to normalise conversations about consent and empower young people to identify and communicate their own boundaries, and respect them in others.


To find out more visit www.schoolsconsentproject.com