Not So Blind Justice: Niqabis in Western Courts

Blind Justice

Has anyone ever looked you in the face and lied? In addition to the Jack Straw brouhaha, a few cases of women wanting to wear niqab (face covering veil) in court have recently been written up in the media. I think that so far all of these cases have resulted in the women having been denied the right to wear the veil and I’m pretty sure the rulings have all been based on the judges’ inability to judge the woman’s demeanor, such as the reasoning in this current case:

“Lawyers representing the two defendants argued that this infringes on their fair trial rights and argued at the preliminary hearing last fall that they should be allowed to see the woman’s face to gauge her demeanor while testifying. Provincial court Justice Norris Weisman agreed with the defence and ruled that the woman should testify without the niqab.”

As a layperson, I’m guessing that the courtroom must be just about the most stressful situation to function within and thereby would be a poor arena in which to judge one’s “normal” character or demeanor–especially the demeanor of someone who alleges rape. Whether she is telling the truth or lying, it seems she would be quite uncomfortable.

Though I don’t choose to wear the niqab (face veil) I support a woman’s choice to wear it-especially as an American. I would likewise support a man’s choice to wear a hat in court, as social mores such as removing hats while indoors are possibly nice in manners but should not be policed by the state. Some schools have enforced dress codes to prevent students from being distracted, but ultimately this is a symptom of other problems that I doubt dress codes will fix. The right to wear what you want is a very American value and I appreciate that it has yet to deteriorate to accepting public nudity, but I digress.

I must have erroneously assumed that the bulk of judicial decisions, if not all, were based on empirical evidence—not opinion of a defendant’s or plaintiff’s character. I am quite surprised by how much weight is being put into the judge’s inability to judge the defendant’s demeanor because of her face being obscured. ”Most liars can fool most people most of the time,” says Paul Ekman, a psychologist at the University of California at San Francisco.

Do you think judges are specially trained to detect lying based on demeanor? Actually, demeanor would mostly be body language which is not obscured by a face veil. So really facial expression seems to be the crux of this problem. Here is a list of stimulus researchers use to detect lying:  Gaze Aversion, Speech Rate, Smiles, Illustrators, Self-Manipulations, Hand/Finger Movements, Foot/Leg Movements, Speech Hesitations, Speech Errors and also Criteria-Based Content Analysis which is all content stuffs like Contextual Embedding, Coherence, Spontaneous Reproduction, Peripheral Detail, etc.  So how many of these elements would be obscured by a face-veil? By my count–just the smile. Though I hear it is easy enough to see if a woman in niqab is smiling, especially the more mature in age she is.

Smiley Sissy

 

I’m not convinced that the veil would obstruct justice as some have been arguing. I believe a woman with a veiled face would make some justices uncomfortable; but this puts the veiled woman at risk of receiving the injustice of a biased judge. Here is another smart(er) response to this problem from lawyer and educator Steven Lubert who says of a judge in these cases, “This would be a good time for Judge Paruk to realize that Themis, the goddess of justice, wears a blindfold for a reason.”  True that.

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6 thoughts on “Not So Blind Justice: Niqabis in Western Courts

  1. As-Salaamu ‘alaikum,

    While there are many scholars who make niqaab (or, at least, covering the face) compulsory for women, they do actually allow an exception for testifying, simply because she needs to be identified. Sadly, the people who told this woman (or who wrote the books or pamphlets which told her) to wear niqaab probably forgot this. Doing business is another exception.

    1. Walaikum Asalam,
      I’m not looking at this situation from a perspective of Islamic beliefs or mis/disbeliefs. I’m looking at it from the perspective of religious freedom and civil rights. For whatever reason she chooses to wear the face veil, how “accommodating” should the court be of religious expression?
      I’m pretty sure there was a court case in the south a few years ago in which a woman wanted to wear a niqab and the argument against her wearing it (which was presented by a “Muslim expert”) was similar–that she was a member of an “extremist” sect and that the veil is not required. I believe the current president of a very well-known American Muslim organization made a statement supporting the woman wearing it not based on whether or not her religious beliefs were “correct” but that all religious beliefs are valid and should be respected. This president is far more eloquent than me, but unfortunately I just don’t have the stomach today to sift through the hundreds of hate sites that have popped up while I tried to search for her better-worded argument. Maybe later, inshallah. It does seem that this is becoming a reoccuring problem as well as other incidences of Islam being presented in court, so which version of Islam would you like for the courts to accept?

  2. This post was moved here from my old blog, here are the comments:

    Umameer:
    I thought the eyes were the gateway to the soul (lol) any who I definitely agree with you on this subject it is ridiculous to think that you can judge someones demeanor or what they may be thinking. I do believe it is the fear that the veil represents to the west. you know the unseen is some thing of a scary figure and not to be trusted. You can totaly you see this even when you deal with people in any public arena when you are communicating .They must have eye contact and a firm hand shake . What is that all about.

    Br00ke:
    Umameer-It’s funny you mention the handshake. A sister recently told me about being at an interfaith dialogue and shaking an older man’s hand against her better judgement. When she saw him going around shaking people’s hands, she thought maybe the same kind of idea applies to old women not covering and that it would be harmless to shake his hand. She now knows that the case is not so with men. So when he got to her she shook his hand and when she tried to pull back he would not let go. He talked to her for what seemed like forever all the while holding her hand very firmly. She was so mad and disgusted. It’s about control and entitlement.

    Rain:
    Weeelll…
    I hate to throw the fly in the ointment (ok, you got me, I luvs rabble rousing) but the legal reasoning is that the accused has the right to face their accuser. That’s why it’s difficult to get judges to allow witnesses to testify outside the courtroom (ie via video). Everyone in the court, not just the judge, needs to be able to see the witness and judge their story, spoken or not. Unfortunately, this is what some trials are reduced to and the belief that folks can judge when others are lying based on body language.
    And you are right, the witness stand and court are very intimidating. That’s why the lawyers prep you ahead of time.
    Now, for my second fly chunk, how about when the judge asks Muslimahs to take off their hijab before entering the courtroom? It happens more than you think.

    Br00ke:
    Rainnnn-(sending you virtual shin-kicks and ducking from the stick ) So are you saying people have the right to face their accuser–face-to-face, comme rubbing noses? How literal we gonna get? If the court has identified the woman in the face-veil as the accuser/defender is that not enough proof of her identification? Folks gots to see her for themselves? They don’t trust the system? I’m suddenly reminded of how before I was identifiable as a Muslim, no medical professional every questioned my request for a female doctor; but once I got that scarf on my head–I received eyerolls galore–for what? My abusing my rights of preference? And why I’m thinking of that is because most niqabis would probably be fine to temporarily show their faces to any court personnel, but some would probably prefer a female–and is that soooo much to ask for?
    I’m telling you again, any lies that could be said without the face-veil, could just as well be said with it. Looking at someone’s nose isn’t going to help determine their honesty. I believe a Muslimah in a courtroom is already going to have undue bias weighed against her and that a face-veil, though I believe absolutely within any American’s rights, will ultimately tip the scales against her even worse. Just as a man in a suit will have the scale lightened just a bit more than a man in street gear–though his skin color will tip the scales against him…Are you finding it ironic that in a court of law, the one place we are most likely to legally exercise our personal rights, so much conformity is expected?
    Yeah, yeah I know some archaic, bigoted and/or ignorant fools want women to take their scarves off (no head gear!) in courts but did ya know they can’t wear them in some prisons? Should folks be denied their religious observations whilst incarcerated? Ay Rainy? You gonna write a little post ’bout it?

  3. As salaamu alaikum,

    I’m wondering if the woman’s face was disfigured by fire, if she would also need to show her face for the judge? How about if she is missing a nose or has a cleft pallet? Does the judge need to be all up in her grill? This was a judgement based on nagging curiosity hidden behind the law.

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