Canadian Court Overturns Ruling that Rape Victim Must Remove Niqab to Testify

by Cara on October 15, 2010

in bigotry, courts, discrimination, human rights, International, misogyny, objectification, patriarchy, race and racism, rape and sexual assault, violence against women and girls

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.

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{ 11 comments }

1 Gomi October 15, 2010 at 3:00 pm

Honestly, in a court setting, I can see such a request. There’s a lot of language conveyed in the bare face, and in court, being asked to answer questions truthfully, I can see a reason to require bare faces. We read a lot of body language subconsciously, and this is denying the court (lawyers, judge, jury) from fully reading a person’s testimony.

I’m not saying this woman is lying, or looking to conceal something. I’m confident she isn’t. But in the interest of precedent, it makes sense to me.

2 Cara October 15, 2010 at 3:12 pm

A precedent where certain women cannot testify in court makes sense to you? Oh, okay.

There’s a lot of language conveyed in eye contact. Not everyone can make eye contact at all, or do so easily. Should someone who cannot make eye contact not be allowed to testify in court? There’s a lot of language conveyed in one’s tone of voice. Not everyone can speak, or uses inflections in the same way. Should such people not be allowed to testify in court? There’s a lot of language conveyed in gestures. Not everyone can make gestures. Should they not be able to testify in court? There’s a lot of language conveyed in the inflection we place on certain words. Should people who don’t speak English not be able to testify through a translator in English-speaking courts?

Or is it just women who cover who should be forced to change something about they communicate in order to testify against their rapists?

3 Kaethe October 15, 2010 at 3:34 pm

I can see a reason to require bare faces
Does that mean we never have to listen to the testimony of a man with a beard? Or women with makeup?

The truth is, we can’t tell anything about a person’s testimony based on their face, even though most people believe otherwise. Which is why a good defense attorney helps her client look as respectable as possible.

And I wonder, in addition to all the usual intimidation tactics of the defense in rape cases, if this isn’t a little bit of special pleading? Because surely a lot of people are going to project innocence onto a veiled woman.

4 Cara October 15, 2010 at 3:54 pm

To clarify my previous comment, I’ve no doubt that some people would say that many if not all of the people listed above should not able to testify — the point I was attempting to make is not that things like ableism are not issues, but rather hopefully, that with enough examples of where this kind of thinking leads to and how many people cannot meet all normative standards of communication, one might see how ridiculous those standards are. Just because X method of communication is legitimate and important to many or even most people does not mean that all people can or should be required to engage in X method of communication.

5 Gomi October 15, 2010 at 4:42 pm

I don’t want to stop *anyone* from testifying. Given the choice, better to err on the side of greater testimony than less.

And we should never *require* such things in a way that excludes people from testifying.

But, given possible choice, I would argue towards the greatest possible transparency, yes. Someone unable to make facial expressions is one thing, but a person wearing something they can remove is another. A veil is removable.

There should never be *anything* stopping a person from testifying against their rapist, attacker or molester. But legal precedent applies to all sides. This isn’t just about a single Muslim woman. Next time, it might be about the rapist.

6 Cara October 15, 2010 at 4:55 pm

Yes, a veil is removable. For many women, it’s also an integral part of their identities and/or the only way they’re willing to be seen in public. With makes the options either veil or no testimony in a lot of cases, or veil or violent erasure and oppression against one’s identity. That is not okay.

And yes, next time it might be the rapist. But as much as I want as many rapists convicted as possible, I don’t want them convicted through means that reinforce oppression. Defendants still deserve rights in court. If denying an accused rapist a lawyer is the only want to convict hir, I don’t want that conviction. Similarly, if a rapist will only be convicted by upholding Western hegemony and xenophobia, I don’t want that conviction either. The point of convicting rapists should be enforcing the fact that people have rights, not taking rights away.

7 Gomi October 15, 2010 at 5:01 pm

Makes sense. You’re right.

I would prefer testimony be as open as possible, but making it a ruling is a bad idea. Good point.

8 maggie October 15, 2010 at 7:43 pm

I don’t see why the whole jury would ever need to see her face, but I”m not sure that was what the judge was referring to. In this case, the victim and rapist are acquainted (relatives), but what if they were strangers to each other. I think it could be argued that if the defendant was not allowed to see her face he, wouldn’t necessarily be able to identify her for example as someone he maybe has never seen before. But I wouldn’t think she would need to remove the niquab before the whole jury.

9 The Untoward Lady October 16, 2010 at 10:14 pm

I think that asking a covering woman to remove her niqab would be rather like asking me to remove my shirt to testify…

As for the assertion that there is a lot of communication evident in the face during testimony that’s just not really true. Yes, there is a great deal of nonverbal communication but that communication is extremely unreliable when it comes to verifying the truth.

Personally, as an autistic woman and as a rape victim I would really appreciate it if people were not able to look at my face while I testified. As an autistic woman a lot of my facial expressions are misleading, especially when I’m under pressure. Trauma, especially, gets messed up in my face where I can look completely unhurt or even pleased as I talk about things that, in actuality, deeply hurt and are deeply traumatic for me. I have had people disbelieve me or treat my trauma as if it was no big deal because of my body language when telling them about my experiences. I don’t know if I could go before court and have the same thing happen to me.

10 dietwald October 17, 2010 at 2:03 pm

I agree with Untoward that the claim about needing to see the face to determine a witness’s truthfulness is a little strange. In fact, it may be downright false. There is no reliable way of telling whether a human being is lying or not, other than having material evidence that contradicts the testimony. In fact, there is plenty of research to suggest that eyewitness testimonials are pretty much useless and provide little insight into the truth of an issue.
I’m tempted to suggest that all witnesses in court should have their face covered, lest the jury or the judge base their opinion on misleading ‘non-verbal’ cues.

11 preying mantis October 18, 2010 at 7:51 am

They’re taking the right to face one’s accuser a little literally there, I think. I mean, this isn’t even an issue of the witness having to testify via teleconference or cctv. She’s not anonymous to any of the trial’s participants, she’s physically present and capable of giving testimony and being cross-examined–demanding more seems ridiculous, and I somehow doubt they’d be entertaining the request if she were the victim of a non-sexual crime.

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