(Untitled)
N.S., the victim witness in a trial against two men accused of sexual assault, wishes to wear a niqab in court while testifying against the defendants. This has gone to the Supreme Court, who has basically put it back to the trial judge, stating that these issues must be decided on a case-by-case basis, using the following four criteria:
a) the ( Read more... )
a) the ( Read more... )
In the US a witness can wear whatever s/he wants (provided it is legal). What the witness wears, of course, can affect how the factfinder assesses the witness. A woman in niqab might well be penalized by biased factfinders. so really, in the US, we would just shrug and say "if she wants to risk her case..." I mean, she's the victim. While technically the government is the one prosecuting, without her active cooperation, they have no case. Given that the wearing of the religious garb is more likely to hurt her case than the defense's, to me, the idea of the DEFENSE objecting to such a thing is bizarre. The only thing I can think is that maybe they were hoping she'd refuse to testify if forced to uncover her face to do so?
It's also gross. Their clients are accused of sexually assaulting her. Forcing her to reveal body parts she doesn't want to reveal to a crowd of onlookers is so akin to sexual assault... it certainly makes one feel that the defense attorneys, entirely aside from their position on religion, have a fucked-up position on women's rights.
Reply
Maybe you're right that it could prejudice the jurors. But she's in Toronto, a very ethnically diverse city where many populations get along fairly well. Surely it couldn't be difficult to select a jury who wouldn't be prejudiced by seeing a woman in a niqab. After all, Torontonians see so many people in religious clothing every day as they go about their business.
I didn't know that people could cover their faces in court in the US. I can see the problem with it in court. We've also had legal issues about whether people should be allowed to become citizens if their faces are covered, and no one can actually see if they are reciting the words that they are supposed to be pledging.
I can see the issues with face covering in certain situations, but I think we need to accommodate as much as possible where possible. The Supreme Court's decision that it should be decided case-by-case with those criteria seems entirely reasonable to me.
Covering the face is becoming a bit of an issue here. There was a lot of talk a couple of years ago about banning face-covering on public streets because of the rioters during the G20. Which is startling, because it would affect not only 'bad guys,' but would also take away the rights of people wearing religious clothing and of cold Northerners in winter toques (you know, the kind with the eye and mouth-holes that I grew up wearing on 40-below days in Sudbury. I still dress my kids in them sometimes in the winter even in this part of Ontario on the really cold days)! Not to mention my own right not to be viewed by the security cameras with facial recognition that they're always talking about putting up on every street corner. Not that I've done that, but you know, we're really becoming increasingly monitored. I just hate seeing rights quietly taken away for one ostensible purpose when people don't seem to realize how broadly it could affect them.
I saw it happen in mental health law a lot. Something would be brought in for a certain purpose, like Brian's Law (Community Treatment Orders, which mean a certain list of restrictions that a mental health services consumer must abide by or be taken back to hospital -- often by police). The law was brought in because of someone (a police officer, I think, if memory serves) who was killed by a mental health consumer who had been discharged from hospital, and didn't take his meds or do appropriate follow-up care. The CTO was supposed to prevent that. The problem is, in practice it is so abused. There are often regulations put in about way more than showing up for medical appointments and social worker visits and taking meds in front of an approved person. There are also regulations put in about where someone can live (like, with a particular family member), how often they need to shower, how tidy they need to keep their room, etc. etc. And that's not all! Often CTOs are used not just for people who may be a harm to themselves, but often used to coerce young consumers or elderly consumers into certain types of behaviours -- even when these people have never been a harm.
Anyway, getting rambly. Better stop.
Reply
Eh. That's what they're saying, but it frankly makes no sense. It's as much to her benefit - probably more so - that the jury be able to see her face. Why would the defense assume that the jury being able to see her expression - likely her agitation, possibly her tears - would be beneficial to THEM? Who knows, maybe she'd come across poorly and it would help the defense, but I think it's much more likely that it would not. A witness with a covered face (in Western society) seems more sketchy to a factfinder, apart from any potential religious bias.
I didn't know that people could cover their faces in court in the US. I can see the problem with it in court.
I don't think it's a problem. In many cases the jury does not have the very best evidence, or all the evidence, for all kinds of reasons, and we don't have a heart attack. Also, wouldn't forcing a person to remove a niqab against her will mislead the jury or cause them confusion? Face covering can communicate other things about the witness, like intense religious devotion, that could be useful to a factfinder. And maybe the face covering does not allow one to read expressions, but those are notoriously misleading anyway (look into any legal research on this).
In short, the witness should be permitted to present herself as she honestly chooses to and believes is best. THAT is what will help the finder of fact. Forcing a person to present herself in a way that is against her deeply held religious beliefs is not honest with the jury and will therefore not lead to more accurate fact-finding.
and no one can actually see if they are reciting the words that they are supposed to be pledging.
that objection just seems silly.
There are also regulations put in about where someone can live (like, with a particular family member), how often they need to shower, how tidy they need to keep their room, etc. etc.
That is insanity (no pun!). I hate, hate, hate government intrusion in personal choices.
I also am concerned about "well-meaning" removal of rights. Frankly I think the only reason we have any rights at all in the US is because of the constitution.
But she's in Toronto, a very ethnically diverse city where many populations get along fairly well.
I remember your own trial experience in Toronto. I was not impressed with the court's openmindedness or respect for women, let alone that of others with whom you were in contact.
Reply
I can barely remember the crown attorney. There was no jury. But I remember the judge as being quite sympathetic. He stopped the defense's line of questioning a couple of times, if I remember right. But I really don't remember a lot of details. I wonder if I am sugar-coating it for my own mental protection. I am not so curious, however, as to look back at old posts to find out. I am happy to let those sleeping dogs slumber away!
This face-covering thing has been such an issue in our media, with regard to court, swearing-in ceremonies, driver's licences, showing one's face to someone to confirm identity. It's surprising to me that it hasn't been much of an issue in the U.S. As much as I fall into thinking of our countries as so similar, when you and I have conversations about certain things it stuns me how different they are in some ways. Do you remember our conversation about employers/employee rights? Or about that United Way campaign in Canada with the testimonial from the teen mum?
Reply
Leave a comment