Gender Focus Panel: SCOC Ruling on Wearing Niqabs in Court

by | December 23, 2012
filed under Can-Con, Feminism, Racism

niqab

This past week the Supreme Court of Canada issued a ruling on whether Muslim women have a right to wear a niqab in court.

Via the CBC:

A Muslim woman who is the complainant in a sexual assault trial in Toronto has lost her bid before Canada’s top court to have an unimpeded right to wear her niqab while testifying.

In a split Supreme Court of Canada decision released Thursday, the seven judges largely upheld a lower court’s ruling that the woman, known only as N.S. to protect her identity under a court-ordered publication ban, may have to remove her niqab.

[…]The Court of Appeal had ruled the woman may have to remove her niqab if her credibility became an issue.

The court also set out criteria that a judge must consider in such cases, including whether the veil would interfere with cross-examination and whether the witness would be appearing before a judge only or before a jury.

Toronto’s Barbra Schlifer Commemorative Clinic was one of three intervenors in the case, arguing that “removal of a complainant’s niqab would be a disincentive to the reporting of sexual assaults and impede access to justice for an already marginalized group.” The Clinic stated they felt the split decision recognized the complex rights’ issues, and they thanked Justice Abella for her dissenting opinion, which stated in part that: “the harmful effects of requiring a witness to remove her niqab, with the likely result that she will likely not testify, bring charges in the first place…is a significantly more harmful consequence than not being able to see a witness’ whole face.”

Here’s what three Gender Focus contributors had to say about the ruling.

Jessica Critcher

I’m an atheist– and a really militant one at that. I even won a scholarship and landed my first publication ever because of how unimpressed I am with god and by extension every religion ever (especially yours).

With this in mind, I would like to express my disapproval for the SCOC’s ruling with regards to NS wearing a niqab, because this has almost nothing to do with religion. Reading the news coverage, it’s obvious what the problem is:

Lawyers for the two men accused of sexually assaulting her when she was a child argued that a fair and open trial means the face of a witness must be seen because facial cues are important to establish credibility.

Bolded for emphasis. Rape survivors have to establish credibility. NS is on trial just as much as much as her rapists. And now, in addition to being assaulted, in addition to facing her rapists in court, she may have to be similarly violated and humiliated by the legal system.

I’m not a fan of gendered religious head coverings. But here’s the thing, my opinion as a white person and as someone who does not participate in that religion is irrelevant. Regardless of whether head coverings are oppressive or not, (which is complicated!) and whether NS wears her niqab as “a religious requirement, or as ‘a personal preference and a matter of comfort’” or not, the legal system is already failing her, and her case hasn’t even made it to trial yet. I’m not literally praying for her, but you get the idea.

Sarah Jensen:

This is a really tough one. I disagree with outright niqab bans, such as those enacted by France and Belgium. I can see the necessity of removal in certain circumstances, though, such as when getting a photo taken for identification. The line blurs for me when it comes to testifying in court. I think that the Supreme Court came to the right decision– that the niqab’s allowance is best decided on a case-by-case basis.

I see both sides of the argument, but in this particular case I would be more inclined to let N.S. keep her face covered. Testifying in court can be extremely traumatic for sexual assault victims, as they must face those who harmed them, while simultaneously recounting the painful details to strangers. Many victims already grapple with feelings of shame and exposure, and forcing N.S. to unveil may amplify these feelings. It may also discourage other veiled Muslim women from pressing charges.

Jasmine Peterson:

The Supreme Court’s ruling on requiring a woman to remove her niqab during her testimony is not only disappointing, but it’s paternalistic and, as far as I’m concerned, an impediment on an individuals’ rights. What is particularly disconcerting about this decision is the composition of the individuals who have passed this ruling – none of whom appear to be themselves Muslim women. I think this is a huge (and consistent) problem in Canada in making decisions regarding minority groups, that those making the decisions are not minorities themselves and therefore lack essential insights upon which to base their decisions in a more nuanced and informed manner.

What is perhaps particularly problematic from my perspective in this case is that the defense lawyers asserted that “facial cues ‘can be significant information that help the observer understand what a witness is attempting to communicate and get a sense of who the witness is and how he or she is reacting to questioning.’” Having studied forensic psychology, I worry that the premise behind this requirement is faulty, at best. It is certainly not supported by research. A witness is not on trial, and this seems to me to be a sort of revictimization. But even more than that, juries are not particularly good at judging a persons’ honesty by their demeanor or their facial expressions. In fact, people are not particularly good at detecting lying most of the time. So the facial cues alluded to by this defense lawyer are likely inconsequential to getting to the truth anyhow.

Finally, I think the idea that the niqab “undermines gender equality” is also based in misunderstanding and wilful ignorance. That is not to say that, for some, the niqab is not experienced as an oppressive garment. However, for many, the niqab is worn not out of some oppressive imposition but because of personal and religious beliefs. It is experienced as a positive thing, not a negative. I find it troublesome when I hear essentialist statements about the oppressiveness of the niqab when I have heard it spoken of very positively by some Muslim women who choose to don the garment for spiritual reasons. Unfortunately, I think this widely held misconception of the niqab as only being oppressive influences decisions like these being made by people who are on the outside looking in. Too often our Western views are imposed upon others; as a multicultural country I think it time we become more sensitive in addressing the diversity which comprises Canadian citizens, and their rights.

(photo via Wikimedia Commons)


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