By Alana Prochuk, WAVAW’s Campus Anti-Violence Initiative Coordinator

In a split decision, Canada’s Supreme Court has ruled that judges must determine on a case-by-case basis whether a witness can testify while wearing a veil across her face for religious reasons.  The need to establish witness “credibility” was cited as factor that might lead a judge to demand the removal of the veil in some cases.

This ruling originated from a case involving a Toronto woman who reported that her uncle and cousin sexually assaulted her many times over a four-year period.  She wanted to testify against them in court while wearing the niqab—a veil that covers her face, except for her eyes—which she says is a requirement of her faith.

I see some huge problems with this Supreme Court ruling:

• It gives judges yet another level of discretion in the handling of sexual assault cases, leaving witnesses in an even more disempowered and unpredictable position.  It’s already traumatizing for survivors to be interrogated in court about about their experiences of violence and, all too often, to have their credibility undermined and choices questioned.  The recent Supreme Court ruling adds to this trauma by leaving it up to individual judges to decide whether a survivor can wear what she feels comfortable wearing and follow her religious convictions during the trial (which is likely to be one of the most stressful experiences of her life, even putting aside the indignity of having her self-presentation dictated by the judicial system).

• Niqabi women, who already face interlocking racism, sexism and Islamophobia when navigating the criminal justice system, will now face yet another deterrent to reporting sexual assault.  This is just what a marginalized group of women really need: yet another reason to worry that they will not be taken seriously or have their choices respected in court, yet another reason to avoid accessing justice.

• This ruling is a variation on a very old and sexist theme: the belief that women’s credibility depends on what we are wearing.

• Of course, the recent ruling is also incredibly ethnocentric : it assumes that jurors can impartially gauge a witness’s credibility by scrutinizing her facial expressions.  But the facial indicators presumed to indicate honesty vary from culture to culture and are also highly gendered.  Direct eye-contact is pretty much just white guys’ favoured way of performing sincerity.

• There’s no solid scientific evidence that a person’s credibility can be accurately assessed just by looking at them.  Why is our Supreme Court giving credence to a super-sketchy, subjective, and probably downright bunk judicial methodology?  As the lawyers of the Toronto woman pointed out in their appeal to the Supreme Court, “After decades of scientific research, all experts agree there is no clear evidence that facial expressions are helpful in assessing credibility. And there is some evidence that facial cues may be unhelpful.”

You know what else is unhelpful?  Putting women’s credibility and choices on trial instead of rapists.