Veiled Justice and the Right to Confront a Full Face


Posted on October 18th, 2010 by Vina Tran
 3 comments  

Shaireen Rasheed is an associate professor of Philosophical Foundations at Long Island University and Senior Visiting Faculty Fellow at Columbia University Law School’s Center for Gender and Sexuality Law.  She shares her thoughts on a recent Globe and Mail article reporting on a recent Canadian court’s ruling that a niqab must be removed in the name of trial fairness:

The right of a Muslim woman to wear a niqab (a veil covering the whole face) while testifying in a criminal proceeding in Ontario will be determined by judges on a case-by-case basis, the province’s highest court has decided. The Ontario Court of Appeal has ruled that the victim of an alleged sexual assault may not have to remove her niqab while testifying as long as the fairness of a trial is not compromised. A lower court had initially ordered the 32-year-old Muslim woman, identified only as N.S., to remove the traditional veil, which covers most of her face during her trial.

The most glaring issue the article in the Globe and Mail raises for me is the debate between one’s religious freedom of expression vs. the transparency of the legal justice system. Whether its the hijab, often little more than a small piece of cloth or as in this case the full length veil called the niqab, these pieces of Muslim clothing have become the yardstick in the West to determine the degree of modernity the East still needs to ascribe to in order to secularize and modernize itself in keeping with prescribed legal norms of the West. As witnessed in the Canada case, the fact that the complainant has chosen to take a stand against her assailant in a court of law becomes secondary. Instead what she visibly does with her body, in this case by wearing the niqab, somehow becomes the only issue of paramount importance. This case is not unusual in its debate.

Sultaana Freeman testifies in court for right to wear a niqab on her Florida driver’s license.

Last month an Australian judge exercising ‘reasonable control’ ruled that a Muslim woman must remove her full veil while giving evidence before a jury. Similar to the Canadian ruling, the rational used was that her facial expression was integral evidence in the trial. In 2009, using the same argument of ‘reasonable control’, the Michigan Supreme Court ruled that judges may ask those testifying in court to remove niqabs, at their discretion. The case dates back to 2006, when a Muslim woman was asked to remove her niqab to assess the truthfulness of her testimony. The fact that asking for the removal of the niqab might deter Muslim women from reporting a crime is not taken into account. Instead the discourse of rights within a secular legal framework often requires an allegiance on the part of Muslim women to liberties that further marginalize them by asking of them to give up their religious practices for the sake of the greater good.

Joan W. Scott in her book, Politics of the Veil calls it, ‘ sexularism,’ or the ‘politics of sexclusion, where a technology of control is used to exclude certain members of society including migrants, non-whites and in this case Muslim women.’ Employing the ‘visual face’  as a new technology of exclusion, Kelly Oliver also offers a compelling argument about the politics of the visual. Oliver proposes ‘witnessing.’ Having two meanings, witnessing serves as the judicial interpretation of historical facts and also as the prophetic ‘bearing witness’ to what cannot be seen. Drawing on both these definitions Oliver helps us become aware of what she calls ‘optic politics.’ Applying it to the Canadian case, the courts would go beyond the issue of the visual niqab to grasp the partiality of the subject under question.  They explore alternative means of testimony that would not require the complainant to show her face. This ethical politics, characterized by ‘collective responsibility’, should be explored when examining issues surrounding the niqab in a court of law. Consequently, to be visually literate and to recognize the ‘invisible in the visible’ would require of us an understanding of a politics of location, so that a Muslim woman in a niqab would have better tools with which to assert issues of religious freedom within a secular legal  framework.

3 comments

  1. The blog is interesting because I see both sides. On one hand I don’t want to force the women remove her veil for her religious freedom, but we get so much information from people’s facial expression and it wouldn’t be fair to deprive the jury of that. Not every veiled women is correct and right just because she’s covering her face. What if she is using the veil to hide?

  2. I dont see why such a big deal is being made about the women covering her face in court. After all victims have given testimonies from behind a screen and in some cases usinig voice altering devices to protect their identity and these have been accepted in the international court of law. Infact a large number of victims of rape in rwanda testified from behind a screen to protect themselves and thier families. In the cases mentioned in the blog the women did not cover their eyes nor were they behing a screen so their body language could still be read.
    As far as showing your face on a driving license is concerned , i feel that is necessary for the sake of security but then the woman should have the perogative to only show it to a female officer. Isnt it in the end all about womens rights even if it is the right to cover up.

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