Niqab, Courts, and Sexual Assault

Today, the Supreme Court of Canada heard submissions regarding the case of N.S., a complainant in a sexual assault case who is fighting for the right to testify without having to remove her niqab.  There’s a summary of the hearing here, and you can look at a couple of my previous posts on MMW for further background.  This podcast is also a good resource.

For those who are interested in writing letters of support to the complainant, there is a sample letter and contact information at the bottom of this post.

Below is a statement written by individuals and organisations connected to the Right 2 Wear campaign, with an important analysis of what’s going on, particularly in the context of what it means for a sexual assault survivor to be asked to remove an article of clothing in order to testify.  This is not about whether the niqab is good, bad, oppressive, obligatory, or whatever.

The Supreme Court of Canada on December 8, 2011 will hear oral submissions on N.S v. R. This case involves a sexual assault complainant, N.S., who wears a niqab which is a veil which covers the face, with the exception of the eyes.  N.S. asserts that when she was between the ages of 6 and 12, she was repeatedly sexually assaulted by her uncle and her cousin. In 1992, when N.S. was sixteen years old, she revealed the assaults to a teacher who spoke to N.S.’s parents. Her father insisted that the matter not proceed, and the police did not lay charges at that time. In May 2007, then a mother of three and expecting a fourth child, N.S. asked the police to reopen the case. As a result, her uncle was charged with indecent assault, gross indecency, sexual assault and with having sexual intercourse with a person under 14 years of age. Her cousin was charged with indecent assault, gross indecency and sexual assault.

Prior to the commencement of the trial, the accused sought an order that N.S. be required to remove her niqab in order to testify, asserting a right to view N.S.’s full ‘demeanour’ while she testified. After an informal, unsworn investigation of N.S.’s sincerity of belief in wearing the niqab, the Ontario Court of Justice ordered her to remove the niqab before testifying. This order has been reviewed by the Superior Court of Justice and the Court of Appeal for Ontario. Both courts agreed that the matter was mishandled by the Ontario Court of Justice and quashed the order, but disagreed as to what the appropriate procedure would be. They ordered that the matter be reconsidered by the lower court. This case will be heard by the Supreme Court of Canada on December 8, 2011. N.S. seeks an order stating that she is entitled to wear the niqab while she testifies in court.

In our view, the accused’s objection to the complainant, N.S., testifying in her niqab is an attempt to humiliate, degrade and intimidate. We are concerned about the outcome of this court decision and its potential to create greater barriers for women who wear niqab to access justice when faced with violence.  It has the potential to cause women who wear niqab to underreport sexual assaults and, as a result, effectively isolate them from legal recourse for sexual violence.  The Supreme Court of Canada has confirmed that courts must be particularly sensitive to the needs and circumstances of sexual assault complainants. Generally, testifying in a sexual assault trial is an extremely traumatic experience for survivors of sexual violence.  The potential for revictimization and trauma caused by cross-examination often causes women to not report incidents of sexual violence in the first place.

There is no dispute that sexual assault is significantly underreported as compared to other violent crimes. If crimes are not reported, there can be no justice for the wrongful act. The importance of encouraging reporting of sexual assault, which is systemically underreported, has been reflected in legislation and constitutionally endorsed in Canada. Additionally an order against N.S. will disproportionately affecting a class of women who face significant stigmatization and vulnerability in the community at large.

As a woman, a Muslim, and a person who wears a niqab, the complainant is a member of multiple groups that regularly experience alienation, discrimination and exclusion from Canadian society and its institutions. Muslim women face compound discrimination and social exclusion on the basis of religion, gender and ethno-racial identity. Additionally forcing a Muslim woman to remove her niqab in the context of as sexual assault proceeding amounts to a traumatic invasion of her privacy and personal security.

We recognize that there are complex discussions about the niqab and are not taking a position on the niqab. What we do recognize is that whatever one’s personal views are on the niqab it is not for the Canadian public, the courts, or any given Islamic scholar to determine whether Muslim women are religiously-mandated to wear the niqab; it is for each Muslim woman to decide the extent of her obligation within the parameters of her faith.

Much of the arguments against the wearing of the niqab in court center on the assumption that judges and lawyers cross examining a witness are able to assess credibility based on the witness’s demeanour, such as her facial reactions to questioning. This assumption flies in the face of strong social science research showing that people are not able to assess honesty based on demeanour. This case will also consider whether judges should be able to question a woman on the sincerity of an individual’s religious belief.

A positive outcome for N.S. will not only demonstrate that women’s attire should not affect their access to justice but it will help give a voice to all sexual assault complainants who must fight countless hurdles to be heard. We believe that any erosion of access to justice for a sexual assault victim, makes all women more vulnerable to attack.

In November, a University of Ottawa law student wrote an email to N.S., posted below as an example.  N.S. responded and said that she really appreciated the support.  If you would like to send your own message to N.S., emails can be sent to her lawyer, David Butt, at dbutt@barristersatlaw.ca.

Dear N.S.,

As salaam alaikum – peace be upon you.

As your case nears its hearing date at the Supreme Court of Canada we, the undersigned, wanted to reach out to you and tell you that we were proud of you and that you are not alone.

You were courageous to come forward with the allegations of the sexual abuse you had suffered. You have undoubtedly imbued many with a similar courage to seek justice for the wrongs committed against them. You were braver still to continue with your struggle after the decision at the preliminary hearing and the many subsequent hurdles. We commend the tireless efforts or yourself and your lawyer.

On December 8th your case will be heard at the highest court of our country. This in and of itself is a great victory and a testament to your bravery and strength.

We have organized a lecture by Natasha Bakht and a discussion on your case at the University of Ottawa law school. It is to take place on November 24th and prepare the students, faculty and others from the community for what issues will be heard on December 8th.

Myself, along with many others from this law school will be there on December 8th for all the sexual assault complainants who must themselves be put on trial. We will be there because we are proud of our country and its potential for progress. We will be there for fairness, for equality, for justice and ultimately, we will be there for you.

It is narrated in the holy Qu’ran that “Allah does not burden a soul beyond that it can bear” (Surat Al-Baraqarah, ayat 286). I hope that you stay strong and know that whatever the result of this hearing is, you have inspired many.
Amna Qureshi
J.D. Candidate, University of Ottawa
Chair, Muslim Law Students’ Association, University of Ottawa