A Toronto judge has recently ruled that a complainant in a sexual assault trial – who happens to wear the niqab, a face-covering worn by a small percentage of Muslim women – will have to uncover her face in order to testify. According to this article,
The judge, Ontario Court Justice Norris Weisman, determined he had the jurisdictional authority to make that ruling under the Canada Evidence Act, because it involves the manner in which the woman is to give testimony, the fundamental right of a defendant to make “full answer and defence” and the “traditional right” of an accused to face the accuser.
The decision will be challenged at the Superior Court of Ontario next month. There is a publication ban on details from the case, including the names of those involved, so most of the discussion happening about this is taking place without a whole lot of information. (Interestingly, one journalist has suggested that some of the information that she is not allowed to publish has made her think differently about the judge’s decision.)
The story hit the news this week, and not surprisingly, it didn’t take long to turn into an issue of “law against religion,” a “collision of two rights,” where Muslim women are painted as not quite compatible with Canadian society and legal systems.
Where to start? Well, first, it’s worth looking at the judge’s rationale for his decision. This article tells us that:
In October, Ontario Court Justice Norris Weisman reached his “admittedly difficult decision” to force the complainant to testify with her face bared after finding her “religious belief is not that strong … and that it is, as she says, a matter of comfort,” he wrote in his ruling.
This decision was, apparently, based on the complainant’s statement that “It’s a respect issue, one of modesty and one of … in Islam, we call honor […] I would feel a lot more comfortable if I didn’t have to, you know, reveal my face.” The judge also talked about learning “at the 11th hour” that the woman had “a driver’s license with her unveiled facial impression upon it.”
Although I don’t personally share the complainant’s opinions on niqab, I’m disturbed by the judge’s presumption that he had the authority to draw conclusions on her religiosity and on the religious and personal importance of the niqab to her. Moreover, the idea of religious “comfort” – whether or not niqab is seen as a religious obligation – should not be brushed aside, especially in a case dealing with sexual assault. I’m also concerned that the language around the “11th hour” revelation makes it sound as if the woman was being purposely deceitful and attempting to manipulate the court into allowing her to testify with her face covered. There might have been decent reasons for forcing the complainant to show her face (although I would likely still disagree), but making a decision based on judgments about her religious commitment seems really inappropriate.
While the niqab side of the equation has, of course, received a lot of scrutiny, news stories have reported comparatively little analysis from the trial about the other side of the issue, that is, the right of the accused to “face” their accuser. I’m no legal scholar (and if any of you are, please jump in here!), but I have to wonder to what degree this provision was ever meant to refer to a literal “face,” and whether it has more to do with being able to confront one’s accuser in person (regardless of how much of that accuser’s skin is visible.) According to one journalist, “There is no absolute right, in Canadian law, for a defendant and a witness to look upon one another during trial or even a preliminary hearing.” Claims made by the defense lawyers have pointed to the importance of judging the witness’s demeanor by her facial expressions; however, it is hard to argue that seeing the face of the witness will make or break their credibility. In fact, as law professor Faisal Kutty argues, the reliability of evidence based on demeanor is not only inherently questionable, but may be even more suspect if there are cultural or linguistic differences that come into play. (Note that we don’t know the cultural or ethnic background of the complainant, so it isn’t clear whether this is actually an issue here.) To the extent that demeanor is relevant, the defense’s insinuation that a face covering will erase all possible cues about its wearer’s emotions and intentions is somewhat perplexing, considering the amount of information that can still be gained through tone of voice and body language. Although facial expressions certainly do convey a lot of information, I also wonder how much of the hype around needing to see a person’s face to judge their credibility comes out of assumptions that women in niqab are all so oppressed by their clothing that they lose all individuality and ability to express themselves.
Does this [forcing a woman to show her face] doubly victimize –maybe even triply –some women? Yes. But that’s the price we pay for not being confined to the kitchen and nursery.
What bothers me here is her assumption that all women (“we”) experience oppression in the same way, and that patriarchal oppression is necessarily worse than oppression stemming from Islamophobia or racism. Might there be some women who might, in fact, prefer to remain in the kitchen and nursery, because they feel that this “price” is too high to pay? Yeah, it would be great if we could get rid of sexism and Islamophobia and racism and classism and all other forms of oppression that are affecting all of us, but if we’re talking about making trade-offs – accepting some forms of oppression in order to escape from others – then it’s probably best not to make assumptions about which trade-offs are best for which people.
A lot of the articles on this topic include the predictable photos of women in niqab, as passive figures that aren’t necessarily doing anything other than looking at the camera (see here and here for examples, and nope, I’m not going to play into the exoticised-niqabi-woman trap by posting one here.) What did impress me was this article, which actually had pictures of, get this, women in niqab doing stuff! One was testifying in court (apparently, it can be done), one was working as a pharmacist, and one was graduating from university. Definitely a welcome challenge to some of the other images out there.
The last issue that I wanted to raise is the way that a lot of the discussion on this topic links this specific situation with Canadian Muslims as a group. This article tells us that “In Canada, home to about 580,000 Muslims, the case will be closely watched, amid fears about Muslim women coming forward in criminal cases,” suggesting that the conflicts that have arisen in this case will be widespread through the Muslim community. Without wanting to belittle the importance of this particular case, I do worry that it is getting blown a little out of proportion, with readers starting to worry that all 580,000 of us are going to start coming into conflict with Canadian courts. Niqab also gets equated with particular levels of religiosity, rather than with particular religious interpretations; we are told that “Niqabs are traditional Muslim veils that cover everything but the eyes” and that “many pious females” wear it. Given the hype about this case representing a fundamental conflict between religious and legal rights in Canada, the implication is that all “traditional” and “pious” Muslims are potential threats to Canadian legal traditions, and may again make the mountain that’s resulted from this case’s molehill seem even bigger. (It’s also, of course, annoying that those of us who don’t choose to cover our faces may end up being assumed to be less religious.)
There’s still a lot of noise being made about this, and it will likely flare up again once the appeal happens in early March. We’ll keep you posted, insha’Allah! In the meantime, what are your thoughts on this?