Piercing the Veil of Ignorance: Niqab-Wearing Women and the Adjudication of Sexual Assault

• Author: Natasha Bakht
• Pages: 91-114

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 chapter four

PIECING THE VEIL OF IGNORANCE:

NIABWEAING WOMEN AND THE

ADJUDICATION OF SEXUAL ASSAULT*

   , the Western world is at an aston-

ishing historical moment, when women’s clothes are still the subject of

legislation, judicial consideration, and public approbation. A Muslim

woman complainant from Toronto made a request to wear her niqab

while giving testimony in a preliminary inquiry in which she alleged

that two accused sexually assaulted her over a period of several years

when she was a child. e accused’s lawyers objected to the complainant

wearing her niqab, arguing that it interfered with their clients’ rights to

make full answer and defence, including the right to disclosure upon a

preliminary inquiry. eir argument was that to eectively cross-examine

the complainant, they needed to be able to see her face to gauge her reac-

tions to their questions. e previous chapter of this book examined the

presence of niqab-wearing women in courtrooms, arguing that because

demeanour evidence is an unreliable tool for assessing credibility, not

seeing a woman’s face should not obstruct the workings of justice. is

chapter looks more deeply at this question, but does so in the context

* An earlier version of this chapter was published as Natasha Bakht, “In Your Face:

Piercing the Veil of Ignorance About Niqab-Wearing Women” (2015) 24(3) Social and

Legal Studies 419.

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In Your Face

of sexual assault, arguing that the prosecution and adjudication of the

oence must be more inclusive of the needs of Muslim women who

cover their faces. ough their numbers may be few, adequately respond-

ing to the plight of niqab-wearing women in this context is just and will

serve to ameliorate the workings of the judicial system for all women.

Part I of this chapter addresses women’s experiences with the judicial

system in the context of sexual assault. Just as other feminist reforms

have demonstrated the importance of taking into account more than

simply the accused’s rights in a sexual assault trial, I will argue that a

Muslim woman’s rights to equality, security of the person, and religious

freedom are equally deserving of serious consideration. Part II closely

examines the aforementioned Canadian case in which a niqab-wearing

sexual assault complainant wished to testify in her usual clothing. e

majority decision by the Supreme Court of Canada in R v NS is analyzed

and compared with a New Zealand case, Police v Razamjoo, in which the

issue of niqab-wearing women in courtrooms was also raised. e judges

in these cases attempt to accommodate the niqab to some extent in keep-

ing with each nation’s policy of normative multiculturalism. Yet, they

do not go far enough in protecting the rights of women who wear face

veils. Part III analyzes problematic judicial interpretations that refuse to

include niqab-wearing women in courtrooms. e concurrence in R v NS

is contrasted with an English case, e Queen v D(R), where the accused

was a niqab-wearing woman. ese cases illustrate the impossible situa-

tion facing women who wear face veils, permitting dubious protestations

that certain requests for inclusion have gone too far.

PART I: WOMEN’S HARROWING EXPERIENCES WITH THE

JUDICIAL SYSTEM IN THE CONTEXT OF SEXUAL ASSAULT

    area of law that has been fraught with mis-

ogyny and racism. While eorts to reverse this trend have been enor-

mous, real, practical, on-the-ground change has been slow. It has already

been amply documented that the oence of sexual assault is most often

perpetrated by men against women. Sexual assault, for the most part,

goes unreported, and the prosecution and conviction rates for sexual

assault are among the lowest of all violent crimes. We must consider that