Women's religious or cultural face coverings in courtrooms
Professor Lise Gotell is the chair of the U of A’s Women’s Studies Program. She is an expert on gender and the law in Canada. She has written extensively on the rights of complainants in sexual assault trials.
Editor’s Note: When we asked readers to send in questions about this topic, we received a number of excellent questions. Many were similar, so rather than printing several repetitive questions, we summarized the inquiries with the following questions.
Q1: When we allow women to remain veiled during a court case, we are not allowing the court to view all demeanour evidence, which includes the appearance, attitude, behavior and disposition of witnesses. How accurate and useful is this type of evidence?
Q2: If we require that veil-wearing Muslim women uncover themselves during court testimony, won't this deter women who are experiencing abuse from coming forward, and instead force them to remain silent and suffering?
Q3: How can we balance the rights of an accused to face his/her accuser with the right to religious freedom and a woman's right to freedom and safety?
A: The bodies of Muslim women who choose to wear the niqab have become sites of cultural anxiety in the post 9-11 world. In N.S. v. the Queen, et. al., currently awaiting decision by the Supreme Court of Canada, a niqab-wearing sexual complainant [N.S.] was ordered to remove her veil by a preliminary inquiry judge. This case raises important questions about religious freedom, equality rights and the right to a fair trial.
At the heart of legal arguments in favour of compelling N.S. to remove her niqab is the claim that evaluating witness credibility requires judges and juries to assess demeanour evidence. Yet reliance on demeanour evidence is increasingly discredited in the legal and social science literature. Even the Canadian Judicial Council recognizes the unreliability of demeanour evidence. As the Council’s approved model jury instructions caution, “Looks can be deceiving.” This may be particularly the case in sexual assault trials, where complainants have been judged against highly stereotypical views about how “real” rape victims act.
At the preliminary inquiry in N.S., the complainant testified that her niqab was “part of [her].” There can be little doubt that requiring her to remove her veil would have been subjectively experienced as disrobing. Courtrooms already require women to relive their traumatic experiences of sexual assault. Having to endure this without the comfort and security of one’s usual clothing would be perverse. The objection to the complainant’s niqab must be seen in the context of long-standing defence tactics used to undermine the credibility of complainants. The removal of the niqab in this context needs to be understood as an attempt to humiliate and intimidate the complainant. Such intimidation can force a complainant to withdraw from participating at trial, likely putting an end to the prosecution. Sexual assault is the least reported of all violent crimes; only one in 10 sexual assaults are reported to the police. A legal requirement compelling veiled women to uncover their faces as the price of access to the justice system would have the effect of discouraging them from reporting their assaults in the first place.
It is not at all clear that the Charter right to a fair trial includes full access to demeanour evidence. In fact, in its judgment in this case, the Ontario Court of Appeal emphasized that the truth-seeking function of the criminal trial may be subverted by requiring N.S. to testify without her niqab, given the unreliability of her demeanour when stripped of her niqab in public. By contrast, N.S.’s Charter rights to religious freedom and equality would be seriously compromised by such an order, with consequences for all niqab-wearing women. Excluding niqab-wearing women from access to justice stigmatizes an already marginalized social group.