by Farrah Khan
A consistently held myth is that women who are sexually assaulted “ask for it” by the way we dress or act. However, government reports and community organizations have demonstrated that this doesn’t matter. A woman of any age, physical type, or dress can be assaulted. Violence is violence, and believing in the myth that women “ask for it” is harmful. Not only does it absolve the perpetrators of violence, it also serves as a red herring that pulls the focus away from support for survivors and from strengthening resources that work to eradicate gender-based violence.
N.S, a woman who alleges that she was sexually molested by her uncle and cousin as a child, has spent six years fighting for her right to testify while wearing her niqab at the criminal trial. She appealed her case to the Superior Court of Justice, the Ontario Court of Appeal, and eventually the Supreme Court of Canada in December 2011. The Supreme Court’s decision focused on the protection of a defendant’s right to a fair trial and the corresponding “right” to face his accuser, in order to test the accuser’s credibility. The Court framed NS’s case as one of competing rights—the accused’s right to a fair trial and the victim’s religious freedom. According to Amna Qureshi:
…what the Supreme Court did was pit a rather benign and harmless religious freedom against the potential for wrongful convictions and maintaining public confidence in the administration of justice. This has the effect of essentially preventing lower court judges from exercising any independent analysis of the issue if the accused brings any argument whatsoever that their fair trial rights will be affected. In other words, unless an accused consents to the witness wearing her niqab, there will be little room for a judge to say she can wear it.
N.S.’s case returned to the lower courts for a new trial in April 2013. On April 24th an Ontario judge ruled (once again) that N.S. must remove her niqab to testify in a sexual assault trial. While I agree that procedural fairness is important to all people who come to court, I believe that fairness in this case must extend to the victim. The decision to order a sexual assault complainant to remove a piece of clothing in order to demonstrate that her “demeanour” is trustworthy, risks the kind of victim-blaming that feminists have fought against in other successful legal cases. Many experts have cast doubt on the assessment of demeanour as a reliable source of evidence. Further, this decision sends a message to women who wear the niqab and to the people in their lives that they will not have fair access to the Canadian justice system and therefore are rapeable.
I sat behind N.S. during the Supreme Court of Canada hearing. I wanted to touch her shoulder and say ‘thank you.’ As an abuse survivor, I never sought formal justice, just like many other women in Canada who experience sexual assault. We know that less than 10% of women who are sexually assaulted report the assault to the police. Like other survivors, I worried that the police would do little to support me, that I would bring shame onto my family and probably most importantly, that no one would believe me.
As a violence against women counselor in the Toronto area, I am deeply worried about the impact this decision will have on sexual assault survivors. Many organizations in Canada including the Women’s Legal and Education Action Fund, the Barbra Schlifer Commemorative Clinic and the South Asian Legal Clinic, support the right of N.S. to testify at the sexual assault trial while wearing a niqab. Child sexual abuse is an epidemic in Canada, where 1 in 3 girls is sexually assaulted before the age of 12. These decisions by the Ontario Courts and the Supreme Court add additional barriers to survivors of sexual assault who are seeking to report abuse to the police.
There is another prevalent myth to critique here: that Muslim women are silent and oppressed. N.S.’s unwavering efforts to speak out and seek justice substantially challenges this myth. As survivors we are often told to be quiet, by our own families, communities, media outlets, institutions, and the larger society. This silencing is equated with being “good”. However, being a “good” community member, daughter, mother, and friend includes working towards ending the cycle of violence in our lives. Instead of allowing various myths to detract from the salient issue at hand, let’s remember that N.S. is seeking justice, and let’s support her appeal process to Superior Court of Ontario. The lower court’s decision raises the chilling possibility that other women may not put their faith in the same justice system that has failed N.S.
Farrah Khan is a community based counselor, artist and advocate. She is the Coordinator of Outburst! Young Women Muslim Program at the Barbra Schlifer Clinic. You can reach her @farrah_khan