A dilly of a pickle

Here’s an interesting ethical debate, for those of you who swing that way:

Ontario’s highest court is considering the thorny issue of whether a sexual assault complainant should remove her niqab to face her alleged attackers in court. The issue has drawn attention from several groups, that are not only split on whether or not a woman should be able to wear a veil in the witness box, but also on the fundamental questions the issue evokes.

Imagine you’re a woman (which will be much easier for my female readers… hello ladies) who has been beaten and sexually assaulted by her family. Imagine your family, and you, are devout Muslims, which means that you must cover your face when you leave the house. Imagine that in order to get the abuse to stop, or to see justice done, you must remove the veil in court to testify. Are you less likely to be willing to testify if it means violating your religious beliefs? What if it’s not just your beliefs, but those of your husband and children, who will be scandalized (and might leave you) if you show your face in public.

Now imagine you’re a lawyer (which will be much easier for my law-school readers… hello lawyers) who has been tasked with representing this woman. Imagine your esteemed colleague, the defense lawyer, is saying that the case should be thrown out on the grounds that cross-examination of your client is impossible, since she is covering her face. Imagine that the abusive rapists will be allowed to walk free on a technicality because your client is bowing to sexist superstition about immodesty based on an interpretation of scripture, an interpretation that even many practitioners of her own faith disagree with. Do you tell her that her claim is meaningless, and that her courage in filing the suit in the first place was a waste of time because of her closely-held beliefs?

This isn’t an abstract thought experiment, this is actually happening. Once again, the laws of the land are having to tiptoe around religious rules. The blame doesn’t lie with this woman, she’s just trying to live her life. The fault lies within a system that allows the systematic subjugation of all women to be seen as a virtuous act. For once, I don’t have a clear-cut answer of what the court should do. On the one hand, testifying would have deleterious effects on the plaintiff and possibly cause her to lose her family and social life; it would most certainly deter other abused women from coming forward after they see that the consequence of speaking up is social isolation (and possibly more abuse). On the other hand however, allowing her to wear the veil not only violates the right of the accused to confront their accuser face-to-face, but implicitly assents to the practice of veiling women.

I’d be very interested to hear what you have to say on the topic. My opinion as it stands now is that it is better to err on the side of the abused and make concessions for them, while at the same time affirming that we do not condone the practice of the veil, but that may change as I have more time to mull it over.


  1. says

    Punishing the victim seems to be an unacceptable option.

    I’m not familiar enough with the law, but I don’t believe that ‘facing your accuser’ requires actual bare-faced facing (so to speak): what’s required is that the defendant knows that their accuser is sitting right over there.

    Seems to me that a simple case of finger-printing (or hell: take some blood and run the DNA) should sufficiently meet that requirement, and the lady can keep herself under her family’s thumb with her clothing choices all that she likes.

  2. says

    What would you think about a similar situation that didn’t involve religion? If a person was wearing, say, a medical face mask because they’re a germaphobe? Or wearing a mask or veil as a political statement of some sort? My major problem is treating certain religious beliefs as a different kind of thing – as worthy of more respect and deference than other kinds of strongly held beliefs. As long as the rules apply equally, it really doesn’t seem like exposing one’s face is fundamental to an acceptable testimony.

    What’s the issue anyway? Is it about the right of the accused to ‘face’ their accuser? If so… a bit literal isn’t it? Is it because facial expressions are essential for a jury to tell if the witness is lying? If we’re so concerned with that, there are much more important issues with eye witness testimony that our time could be spent on.

  3. says

    I’m not waffling because her reasons for wanting to wear the veil are religious, I’m waffling because there is a serious potential for harm to come to this woman from the rest of her community, not to mention her children. My concern is not necessarily for this particular woman, but for the other abuse victims who may be dissuaded from coming forward because they don’t want to lose their kids.

    Of course, this scenario may be entirely fictitious, since if you’re not willing to remove your headscarf you’re likely not willing to testify in open court regardless.

    As far as my reading of the story goes, this particular woman is completely willing to remove the hijab anyway, she just doesn’t really want to. Maybe the whole thing is moot, I don’t know.

  4. ashleyfmiller says

    I’m not sure how I feel about the right to face one’s accuser when violent crime is involved. It’s incredibly difficult for anyone who has been assaulted to sit comfortably in the same room with the person who did it — it’s a lot to ask of anyone, and oftentimes they’ll allow victims to be interviewed alone.

    If being interviewed without her face covered is important, which I’m not sure it is, they can have a female lawyer work with her alone.

    I don’t support the revictimization of abuse victims and you feel exposed enough without having to literally expose yourself more than you’re comfortable with. I don’t really approve of the Niqab, but I also don’t believe in taking safety blankets away from people when they’re already down. It sends a bad message not only to other women who are part of that particularly repressive society, but to all abuse victims who need to be reassured that they will be treated with respect.

  5. Tim says

    Isn’t the crime against federal law? Why is she the plaintiff and not the RCMP? If I went to court for burning down a walmart, would the owner of that store have to face me and accuse me in court? Could murderers always go free based on this loophole, or would we have to prop a corpse up in court?

  6. says

    I’m not a lawyer, but I’m pretty sure that if you are the key witness to the crime, and there is no other (or insufficient) corroborating evidence besides your testimony, then you absolutely do have to take the stand and be cross-examined.

  7. Mona Alas says

    You seem to focus mainly on Muslim women who are “forced” to wear the niqab. A Muslim myself, I do not wear the face covering, and just recently started to cover my head – of my own doing. I know a couple of women who wear the niqab, surprisingly all are converts to Islam, and chose the face covering without the influence of a man. They have expressed their views many times, and I have heard them say again and again, that they are willing to abide my the rules and regulations of their country, and they do! They know and are aware of the fact that there are certain security measure in place, and none that I have spoken to object to it. So why the fuss?

    If there is a criminal case that needs to be investigated, then both parties should find the best possible way to accommodate each other. If the Muslim niqabi is not comfortable with the public, she can make it private, and a male judge could be substituted for a woman. Then again in sensitive cases such as this, it would only make sense for the niqabi woman to adhere to the rules for the best outcome possible.

    As for the “forced” Muslim women, its unfortunate in this case in which little help can be done. Most women who are forced to do anything by a male in any relationship whether mother, daughter, wife, are mostly likely controlled and have little say in thier lives. It is a complicated matter, especially when they are from certain places where human right codes is violated on a regular basis. Whether one wear the niqab or not, many women from middle eastern and Asian background are prone to violence such as honor killing, which can be the result of something meaningless. The law isn’t equipped to assist women in such situations, and we hear of these murder cases many times. So if a woman is forced to wear the niqab then the story goes beyond that. She cannot do as she wishes, and that may be an indication that she is pretty much controlled, and 99% of these women would rather keep shut than complain. Unless there is a support system where many of these women are assured that their psychotic significant other won’t come back to haunt them, then I am pretty sure they would feel comfortable to take the stand.

  8. says

    Thanks very much for your comment, Mona. Your assessment echoes my own somewhat – the resolution to the problem of the oppression of women is not the passage of legislation that makes it a crime to be oppressed, but by providing education and opportunity to women (and men) to take empowering steps.

    I hope you don’t mind my direct question, but I was wondering if you could give me some insight into why you chose to wear a head covering. Is it due to Qu’ranic dictates, or as a method of displaying your cultural heritage? I ask this because those are two distinct reasons: one is due to the interpretation of divine scripture, the other is as an outward symbol that you are claiming your culture – much in the same way the afro hairstyle was worn by black women in the 1960s/1970s (and which, interestingly, is making a comeback today as an anti-perm statement). I hope the question is not too personal; the few Muslim women I know well do not wear any covering and I have always wanted some insight into this issue.

  9. medivh says

    As I understand Islam (which is as an outsider in a Christian-dominant culture… so perhaps not well), there is a caveat to the rules on niqabs wherein for any state purpose supercedes modesty requirements. That is, if you live under a ruler that deems covering the face illegal, then you’re still able to practice the style of Islam that requires niqabs under that ruler – the punishment for not wearing a niqab is visited on the ruler responsible rather than the people who would be made criminals by covering their faces. Which seems to suggest that doffing the niqab for the purpose of testifying is fine.

    On the other hand, the metaphor most appropriate to putting me in the same situation is testifying naked in front of a sexual abuser. And the comment about not being able to face one’s accuser is, as others have commented on here, being purposfully misunderstood by the defense council in order to bamboozle the judge into freeing their client. One cannot, to borrow a Big Bang Theory plot, “face” a traffic camera. One will still be made to pay the fines issued from a traffic camera though. Not being able to see the face of one’s accuser, but being able to interrogate said accuser (or agent thereof – a police officer in the case of the camera) is to have “faced” one’s accuser. Which would then mean that while the woman should be fine to doff her niqab for court purposes, the court shouldn’t need to make her do so. At least as far as I can see.

  10. medivh says

    Gah, and now I realise after hitting submit that I got here two days ago from the post that has the decision in it. Sorry about necroposting, then…

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