Veiled References

The controversy over the case about the Toronto woman who wants to remain in niqab while testifying in a sexual assault case just won't go away.

Today, my friend and colleague Rosie Dimanno weighed in.

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. This last, however, is "not a basic tenet of our legal system,'' not enshrined in jurisprudence.

As a Charter issue, the freedom of religion argument belongs in another venue, thus the appeal to Superior Court.

The Criminal Code was amended in 2005 for the specific purpose of making it easier – less distressing – for an alleged victim to testify against the accused in certain circumstances. These modifications were aimed primarily at children, permitting them to give evidence behind a screen or other shielding device, or from a different room, by closed circuit TV.

These accommodations are "presumed necessary" for witnesses younger than 18, but a judge can make the order in any case if convinced it's essential to obtain a full and candid account, where there's a high risk to the witness or a high level of fear.

Adult witnesses can be shielded in cases of a physical or mental disability, when they have been victims of criminal harassment, where a terrorism offence or the involvement of a criminal organization (i.e. Mafia) is alleged or any other circumstance where a judge determines a full and candid account would not otherwise be possible. Screens have been used in sexual assault trials.

Note that the shield accommodation is usually provided so the witness need not look at the accused. In most cases, except where identity is protected, the defendant can see the witness, if only on a monitor. Lawyers can see the witness. The judge can see the witness.

In the case that hit the headlines this week, the complainant doesn't want anybody to see her face, as an adherence of her Muslim faith. While the Qu'ran does not require adult women to cover their faces completely, many pious females do so, if not usually in Canada.

This woman, summoned to the stand by Weisman – but not under oath – said her objection was "very strong," the issue one of respect, modesty and honour. Further: "It's to conceal the beauty of a woman and ... we are in a courtroom full of men ..."

Weisman ruled against the niqab request after concluding the woman – who's worn a face veil for five years – was not as fiercely vigilant about the veil as originally indicated; that she had, for example, removed it for her driver's licence photo.

The judge was attempting a delicate balancing act between competing rights. His reasoning deftly averted the core issue by assessing piety. Yet, either this woman has the right to cover her face or she doesn't. How strongly she feels about it, whatever accommodations she's made in the past, shouldn't be a deciding factor.

<SNIP>

We know how difficult it is for women to testify in sexual assault cases, hence the existing protections. We also know how much more challenging it is for women in certain patriarchal cultures to pursue rape charges, so often are they blamed for the crime – in some countries, brutally punished for their victimhood.

This might be Canada but those cultural realities exist here too, in some segments of the population. We should be making it easier, not harder, for these victims of sexual assault to seek justice. Allowing women to hang on to their niqab in court strikes me as a small and compassionate concession.

Rosie is in favour of allowing the woman to remain veiled while I'm leaning in the opposite direction.

Funny thing is, if you knew Rosie's and my political proclivities, you would expect it to be the other way around.

But then, Rosie has sat in far many more courtrooms than I have, observing all sorts of horrible crimes against women, and seeing how hard it is for at least some of these victims to face their attackers.

Maybe I am too detached, too adherent to the traditions of the justice system, while unforgiving and rejecting of any patriarchal/religious restrictions on women. Maybe, because I live not far from Toronto's  ''Little Kabul'' and a mosque, and see so many women burdened by these veils, I am just sickened.

Does that make me intolerant?

Yes. I hate to see women stumbling along, even in the most brutal heat. I have seen young girls, care-free and running around the playground, grow up and disappear into the long blackness.

For a different, more literary perspective, here's (the delightfully-named) Blind Man with a Pistol. (In fairness to his post however, I urge you to read the entire thing because he sets up his conclusions with all sorts of philosophical references.)

So what does this say about the Muslim woman prohibited from wearing her veil as she faces the man she has accused of raping her? It means heeding her explanation for preferring to be veiled:

“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.”

It means situating this case and Canada’s hysterical obsession with the veil within our illegal occupation and colonization of Afghanistan and the ongoing war on Islam effected by the West in general. It means understanding that religion, too, is a birthday suit, and coincident with, not opposed to the law. It means listening to progressive Muslim women like Marjane Satrapi who do not wear the hijab nonetheless defend its use by her sisters. It means understanding that a vast majority of rape cases are not reported, and those that are have a sickeningly low conviction rate (5.7% in the United Kingdom). It means that the genesis of the phrase ‘facing your accuser in open court’ should be read democratically rather than literally. It does not mean removing the right of the accused to a fair trial and competent defence, but it does mean acknowledging that the system is failing and that removing the niqab from a rape victim is emphatically the wrong direction.

I am back to grappling with this one.

Comments

[Blind Man]

Hi Antonia, and thanks for the link!

Great article by Dimanno. She finely distills the legal problem at issue and discards the sediment that might be clouding our view. She is quite right to point out that religion, and the accuser's piety, should not bear on the case. We have to read her story, and not project our own. When we decide that the veil is a tool of patriarchy, we might be right, but that is our narrative, our interpretation, not the one that matters to the complainant. As Marjane Satrapi notes in the article I cited, she views the veil as a symbol of violence, but that should not conflict with a self-aware woman who wishes to wear one. A rape trial is not the place for that fight, especially if it gives her comfort.

My own views on the veil in general are less pronounced. I'm not sure the veil is worse than the mini-skirt, myself. Both are not decreed by state or religion, but socially enforced, through various pressures and patriarchal strategies of control. I want to know why one outrages us and the other does not. The answer, I suspect, lies in the fact that we are at war with a culture that prefers the hijab, and in bed with the one that prefers the mini-skirt. But I have to say, whatever the answer, it will provide small comfort to a woman testifying against the man who sexually assaulted her.

[sooey]

I don't even see how wearing a veil prevents the defendant from facing his accuser. What's with the literal interpretation? What real difference does it make if he can see her face or not? I mean, if it were the other way around and the veiled defendant is facing a fully bearded accuser with a moustache and long bangs hanging in his eyes - should he have to shave and get a haircut?

[Sebastian Stoker]

Much of Christian, Jewish and Muslim belief is unconsciously reactionary to pagan practices of the ancient world. And the rigidity of adhering to such practices is (though not excusable) understandable.

Of the three most common religions of today only Judaism comes anywhere close to being able to compete with paganism in terms of lifespan. Paganism existed for millennia before monotheism took any significant hold, and even if one were to accept that the larger branches of paganism evaporated with the death and resurrection of Christ, Paganism stills has a good 5,000 plus years on Christianity.

Unfortunately, the pagan practices that the big three religions are often reacting to are those related to woman. In the pagan world women were often not just equal participants in religion and public life, but leaders, and their sexuality and sexual role were tied to religious practice (temple and brothel were one, nudity and orgy were part of ritual, embellishment of female beauty and flaunting of such embellishments were sacramental, female independence was a given).

So, fundamentalists of Christianity, Judaism and Islam dictate that women be modest (often to the extreme), stay far away from the centers of cultural, financial and religious life, exert no influence, and subjugate themselves to men. Even some of the most extreme fundamentalist of these religions will concede that demand for such behavior is not the result of a direct commandment from God. However, they will still insist that such behavior is correct, and that those who do not follow are blasphemers and must be punished. And the less fundamental of followers will often agree, to at least some small degree.

The great challenge of the 21st century and beyond, is for us to look at such things as religion, and separate the pure essence (True Piety in the case of religion) from reactionary cultural baggage, keep the essence and dump the baggage. If we can sort this out, we will jump light years ahead in our evolution as human beings. Good luck!

P.S. There is a great book regarding the relationship to paganism and monotheism called "When God Was a Woman" by Merlyn Stone. It details the shift in the world, from pagan to monotheistic, the matriarchal to patriarchal. It is a great read, and really emphasizes that there is an explanation for absolutely everything, including religious and cultural belief. And no "God wishes it so" is not an explanation.

[jdv]

Muslim women I have known have alikened being forced to remove the hijab to a Western woman being forced to reveal her breasts. When placed in that context, you start to understand how much of a violation it is to impose our own beliefs on others.

The young women has (allegedly) been violated once already. Why must she be violated a second time by being forced to remove her niqab? Testifying in such a case is difficult enough already.

I can't believe you have anything to grapple about. A rape victim should not be told that the process needs to be more difficult for her.