I never liked the idea that someone accused of sexual assault has a right to see their accuser, the alleged victim, in court. “Innocent until proven guilty” Sure. “Balanced justice.” Sure. Whatever. I just don’t like it. At base, the law itself can be sexist in application and education, and while there ARE a few cases of mistaken identity and false accusations, there is ALSO a history of using the court system to scare sexual assault victims into dropping charges.
So I cannot fathom the horror and fear that ANY sexual assault victim has to go through when she must face the person who beat her, hurt her, raped her, hugged her, tickled her, violated her, diseased her, choked her, terrorized her, incest her, touched her, threatened her, ripped her, knifed her, shot her… ESPECIALLY WHEN SHE HAS TO SIT IN COURT and RELATE EVERY HORRIFIC DETAIL to strangers. In the hopes that someone believes her enough to put the person away for, what, 4-12 years? If that.
So what do you do when the religious rights of a woman and the legal rights of a defendant clash?
In 2007, a woman known as N.S. (now aged 32) told police that her cousin and uncle sexually abused her repeatedly while she was between the ages of 6 and 10. During the preliminary hearing to see if there was enough evidence to go to trial, the judge ordered her to remove her niqaab, face veil, based on his assessment that she was wearing it for comfort and not religious reasons. The Toronto Star reported:
In October (2008), 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.
When the complainant indicated last fall she wanted to wear her veil while testifying at the preliminary hearing, defence counsel told the judge that assessing her demeanour was of “critical importance” when tailoring questioning.
Weisman asked the woman to explain her objections.
“It’s a respect issue, one of modesty and one of … in Islam, we call honour,” she replied. “It’s also about the religious reason is to not show your face to men that you are able to marry. … I would feel a lot more comfortable if I didn’t have to, you know, reveal my face.”
The case then went to the Superior Court and this week is now being considered by the Appeals Court. At the moment, the case has nothing to do with the sexual assault. The niqaab issue has completely railroaded this woman’s accusations and her chances at having her abusers go to trial (at least, this is how some Media sources are portraying it). And it’s not like she’s fighting it. She’s open to removing her face veil for identification purposes (her veil-less passport and driver’s license is being used as evidence against her), and has simply REQUESTED to keep her veil on during the trial. And not because she doesn’t wish to be seen by her abusers. Because she does not wish her face to be seen BY ANY MAN who is not a part of her immediate family.
What the Appeals court is deciding upon, is whether or not they have the right to judge her level of faith and piety. N.S. has even agreed that it’s OK for a court to question her on her adherence to Islam and dedication to wearing the veil:
A Muslim sexual-assault complainant has conceded that trial judges ought to be able to question the degree of a woman’s faith before allowing her to testify in a niqab.
“Speaking for my client, I do not have a problem with a couple of respectful questions,” lawyer David Butt told the Ontario Court of Appeal on Wednesday. “A little bit of understanding can go a long way.”
The major arguments against her wearing the veil at trial are that: a) the accused has a right to see the accuser’s face and b) subtle cues from facial expressions will be lost upon the court if she covers her face.
Because SHE MIGHT BE LYING.
N.S., young Canadian grown girl is apparently sexually assaulted by close relatives for four years of her life. At some point, she decided to take on the Islamic practice of veiling. Supposedly, she’s weighed the pros and cons of the practice and feels that she is more comfortable living her life with her face covered. A decade after the abuse has ended, she has the strength and (hopefully family support) to report it to the police. She is possibly going up against cultural and community stigmas and in my opinion, must be incredibly strong to report the abuse in the first place.
It’s not like she put the veil on during the trial. And even if she did, so what? Why is her level of piety being called into question? Because this is a sexual assault case. If she were a witness to a crime, would this be an issue? Probably not — but because her uncle and cousin have a right to see their accuser, it seems like this case is becoming a battleground for the niqaab in Ontario.
I’m not the only one frustrated:
At one point, Mr. Justice David Doherty expressed frustration that the issue ever boiled into a major legal debate at all. “These agendas people bring make everything so complicated,” he said. “Why can’t it just be: ‘Why are you wearing a veil?’ ‘It’s my religious practice.’ ‘Then, let’s go on.’ ”
It’s become an issue because people fear the veil. It’s calls up to mind distrust, oppression… bank robbers. It’s a hotly debated issue within the Muslim community as well. Is it pre-Islamic apparel that was practiced by the wealthy? Did the prophet’s wives actually veil, or was that metaphor? If it’s required, why is it specifically NOT allowed during the Hajj, the religious pilgrimage every able Muslim must perform in their lifetime? Because of this ambiguity, people hold tight to the idea that it is oppressive — forced upon women. Indeed it is. But there are many thousands of women, for centuries, who have willingly put it on because they feel it brings them closer to God.
It’s the agenda of people like Tarek Fatah who want to ban the niqaab outright (and hijab if we’d let him) that has helped in this railroading. I’d like to safely say that he hates Muslims, at least, Muslims like me. (he blatantly refused to speak with me at a press conference, he has refused to speak with my female colleagues before debating them on Michel Coren Live) In his mind, if you wear the hijab, you are incapable of critical thinking. Why else would you be following the archaic laws of a misogynist religion. And he’s supposed to be a voice for Muslim feminism. How can he be when he hates women in hijab, and is arguing for this victim to remove her veil because it is a “political symbol of oppression of women.”
Right. Let’s ask the woman who has been sexually abused to remove her clothing.
A specific piece of clothing that she feels comfortable in. That gives her Divinely inspired strength. No, instead, let’s question her faith. Because she can’t possibly be wearing it for religious purposes. Nope. She’s a trouble maker. Even though she’s shown her face for identification purposes, and is willing to show her face during trial… no. Let’s blow everything out of proportion and tie up the SECULAR court system with a RELIGIOUS issue. Under the guise of protecting the rights of her abusers.
And this is just makes me sad:
Whatever is decided about the niqab, if N.S. testifies at the preliminary inquiry, it is still unclear what would happen at trial.
The lower court judge said evidence given by N.S. while wearing her niqab could be excluded if it was found that it denied the accused their rights to full cross-examination.
That puts the woman in a terrible position, the Ontario Human Rights Commission says. Either she can wear her niqab and risk her testimony being excluded and the charges being dropped, or she can violate her own religious beliefs and remove the niqab to ensure her testimony is allowed.