In Canada in 2007, a woman who has been identified in the press as N.S. accused her uncle and cousin of molesting her as a child. The case was taken to a preliminary hearing, where N.S., a Muslim woman, was ordered to remove her niqab — a face veil that leaves the eyes visible — as a condition of testifying. Believing this to be a violation of her rights, N.S. took her case to the Ontario Court of Appeal. A few days ago, this court ruled that the order for N.S. to remove her niqab was wrong … sort of:
As long as it doesn’t prejudice a fair trial, the court ruled, Muslim women should have the religious right to wear their niqab when testifying.
But if a judge is convinced by the accused that he can’t properly defend himself if she’s testifying against him behind a veil, the witness must remove her niqab and allow the face-to-face confrontation that is the norm in Canadian courts.
“The criminal justice system as it presently operates, and as it has operated for centuries, places considerable value on the ability of lawyers and the trier of fact to see the full face of the witness as the witness testifies,” wrote Justice David Doherty in the ruling released Wednesday morning on behalf of the three-judge panel.
“There is no getting around the reality that in some cases, particularly those involving trial by jury where a witness’s credibility is central to the outcome, a judge will have a difficult decision to make.”
It was not a clear-cut victory for any side, but one cautiously applauded by all.
“It’s a real step forward,” said David Butt, lawyer for N.S., the Toronto woman who was ordered to remove her niqab at a preliminary hearing.
“This walks a middle ground that balances two very important, competing rights.”
N.S. came forward in 2007 and accused her uncle and cousin of sexually abusing her as a child. When the case went to a preliminary hearing in 2008, she said she wanted to testify while wearing her niqab.
When the judge ruled against her, she took her case to the Ontario Court of Appeal in June.
In their 54-page decision, the three-judge appeal panel ruled that there needs to be a “case by case assessment” and for the first time set out guidelines for judges in these previously “uncharted waters”.
For N.S., the appeal court overturned her niqab ban and said she must be given a proper hearing to show why her religion requires her to cover all but her eyes.
The notion of the woman’s niqab impeding “face to face confrontation” has come up in numerous articles I’ve read, to the point that it kind of amazes me. The woman will be right there, forced to sit in the same courtroom as the men she has accused of raping her. She will have to look at them; they will be able to look at her.
Where exactly do they think these people think that her face will be? The niqab is a piece of fabric — it is not a wall, and it does not magically transport a person’s body parts to another room. It does not cause the accused to be any less “face to face” with their accuser than would a pair of glasses or long loose hair, than a bandage or a prosthetic. In all cases, the person’s face may not be 100% visible, but it is 100% present.
While glad that the court did not rule against N.S., I am angered that they did not rule entirely with her, either, and have instead demanded that she adequately grovel before the judge in order to convince him or her that her reasons for wearing her niqab are good enough. Expecting an almost certainly non-Muslim individual to rule on the sincerity, significance, gravity of a Muslim woman’s personal and religious beliefs is nothing short of oppressive, Islamophobic, and misogynistic.
As a white, Western, non-religious woman who grew up steeped in Christian culture, I am far from an expert on the topic of the niqab and other forms of veiling, myself. So I want to be very careful to not make any inferences about what the niqab means generally to women who wear one, or to the victim N.S. specifically, as these are things I cannot claim to fully understand. (And please correct me on anything I do get wrong.)
But I do know a few basic things for sure, things that we should be able to apply across the board. I know that one should not have to violate a deeply held belief in order to be allowed access to their right and duty to testify in a court of law. I know that one should not face an interrogation about their religious conviction or lack thereof — to get you or me or some random judge to a place where they understand one’s religious conviction — in order to access that right and duty, either. I know that one should not be made deliberately and unnecessarily uncomfortable as a condition of participation in the legal system. I know that one should not be forced to remove the articles of clothing that one generally wears in public to sit in the witness stand — just imagine the uproar if this was expected of non-Muslim women. I know that people communicate differently — as a result of culture, language, disability, personality, and a whole host of other factors — and that whether one meets an arbitrary, dominant, normative expectation regarding communication should not be the marker of their credibility.
And I know that all of these simple truths become even more dire when we are talking about a woman who has reported sexual violence. I know that if all of the above is not taken as common sense, there is a whole class of women who will no longer feel entitled to seek justice for the violence committed against them, who will no longer possess that right. If a woman cannot wear a niqab and testify against her accused rapist at the same time, then women who wear the niqab no longer have the full legal right to not be raped.
I believe that the attempt to force N.S. to remove her niqab was little more than an intimidation tactic by the defense and an exercise in cultural superiority by the judge. And I agree with N.S.’s lawyer that claims about how her right to wear one supposedly impedes a jury’s ability to establish credibility are based on a wholly faulty premise:
N.S.’s lawyer, David Butt, argued that how a person looks when answering questions isn’t useful in determining whether the person is telling the truth, so nothing would be lost if N.S.’s face cannot be seen.
“Poker is an interesting game precisely because demeanour can be so misleading,” Butt said.
The Canadian Civil Liberties Association agreed. Courts regularly accept testimony from witnesses whose demeanour can only be partially observed, said its lawyers, Bradley Berg and Rahat Godil.
“The right to make full answer and defence is not infringed when a witness is blind, or when a witness’s mouth occasionally twists into a grimace due to a congenital defect,” they say in their material.
In other words, strict universal standards are not only unrealistic and impossible to meet, they’re also naturally prejudiced, assuming a biased standard of “normal” and construing as difficult, disruptive, and abnormal all who cannot meet them. (And while people with disabilities are used as an example of how the same standards are not applied across the board, people with disabilities have many times been oppressed in legal systems on the basis of not meeting normative standards of communication and behavior.) Further, determining an individual’s guilt or innocence — making the decision whether a person becomes incarcerated and has a permanent criminal record — based on a series of peoples’ facial expressions, is just a really scary way to do things, period.
I hope that N.S. is finally given her deserved fair day in court, and that a jury will decide her alleged rapists’ guilt based on the merits of the prosecution’s case, rather than either rape myths or the accuser’s religion.
Note: Islamophobic comments will not be published.