Should Muslim Women Testify with a Face Veil?

Should a Muslim woman remove a face-covering veil when she testifies in court? That is the issue confronting some judges in Western democratic societies.

In a Canadian criminal case that resumed earlier this month, a legal struggle spanned five years when a Muslim woman refused to remove her Niqab or face-covering veil while testifying in front of the men she accused of assault.

Notably, many faith conscious Muslim women believe they must cover their body - except the face and hands - whenever in the presence of men who are not their relatives. This commonly encompasses a headscarf and is referred to as Hijab. A minority believes they must also cover their face except the eyes. These women are commonly described as wearing Niqab.

In the legal context of religious freedom, however, the minority status of the face covering veil does not matter. Rather, whether the belief is sincerely held by the individual who wears it does.

The Canadian judge ordered the Muslim woman to remove the face-covering veil when taking the stand in order to assess her credibility by judging facial expressions, temperament and demeanor. The Supreme Court ultimately heard the issue but rendered a split decision.

In so doing the Court sent the issue back to the trial judges to decide on a case-by-case basis while keeping in mind certain factors. These include whether she has a sincerely held religious belief and whether the face veil undermines fairness in trial proceedings.

Back in criminal court, the trial judge ordered the Muslim woman to remove the face veil to help him assess her credibility. But, in a compromise, only the judge, lawyers and defendants - not the viewing public - would see her face.

So, when the case resumed earlier this month, the courtroom was organized with a separate viewing room for the public with a video feed that would only show the back of the woman's head.

Interestingly, the Canadian Muslim woman revealed that she also removed her face veil in a number of other limited contexts where necessity required her to do so. This included driver's license and passport photos and at security check points for police and border guards.

Arguably, testimony from the witness stand may similarly invoke the rule of necessity as well. Essentially, in Islamic law, necessity removes the restriction to help make one's life easier.

In another case, a London trial court judge recently ruled that a Muslim woman accused of witness intimidation must remove her face-covering veil when she testifies. Initially, she refused to do so citing religious freedom.

Here, too, the English judge compromised. He ordered her to testify without the face veil but from behind a screen or via video viewed only by the judge, jury and attorneys - not the public.

Similar to his Canadian counterpart, the London judge's overriding concern revolved around credibility assessment.

Notably, the woman was permitted to plead not guilty while wearing the face-covering veil. Prior to the plea, the judge asked a female officer to view the woman in a private room without the face veil, and then testify under oath that the correct person was in court. The judge is also allowing the woman to wear the face veil throughout trial.

Both of these points help evidence an absence of bias. In essence, the veil is being removed for a very limited purpose, audience and period of time.

Several years ago, a similar case arose in the United States but, unfortunately, no compromise was achieved. A Muslim woman wearing a face-covering veil sued a rental-car company in a Michigan small-claims court. There, a district court judge ruled that the plaintiff had to remove her veil while testifying. Again, his primary concern involved assessing credibility.

She refused, while indicating her willingness to remove the face veil in front of a female judge. She explained that she regularly removed her face veil for female airport screeners and security guards as well as women who took her photo for driver's license. She requested a similar accommodation in court but there were no other female district court judges before which she could appear. (On a separate note, we need more female judges in our state and federal courts, including Muslim women).

Demonstrating agency, she filed a legal challenge (because the judge dismissed her case for failing to remove her face veil). She claimed the judge violated her First Amendment rights while also denying her access to court. The case made its way up to a federal court of appeals but she withdrew her claim prior to the court's hearing it.

Interestingly, the Michigan Supreme Court issued a generally applicable statewide rule in response to this sequence of events.

That rule gives judges the power to "exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder and (2) ensure the accurate identification of such persons."

We saw how this was handled in the London and Canadian cases above - compromises were reached balancing the court's interest in fair trial proceedings with individual rights sounding in religious freedom.

Distinct to the American context, however, is the legal community's response. The American Civil Liberties Union, a preeminent civil rights group, petitioned the Michigan Supreme Court to add the following sentence to the rule: "No person shall be precluded from testifying on the basis of clothing worn because of a sincerely held religious belief."

In addition, some academics and scholars cited a number of instances where a witness's credibility is determined without the benefit of facial expressions. They pointed to blind judges, witnesses incapable of displaying their emotions through facial expressions because of medical conditions and third parties offering testimony for unavailable witnesses.

They also highlighted empirical evidence showing that facial expressions may not be reliable when assessing credibility. They argued for less obtrusive means to determine credibility such as assessing a witness's voice and body movements.

Indeed, as Americans we pride ourselves as tolerant of religious minority rights commonly citing the legal guarantees embodied in the First Amendment. This may help account for American sentiment towards the face-covering veil, which contrasts sharply with European views.

According to a 2010 Pew survey, 62% of Britons supported a ban against the full-face veil in public places. In contrast, 65% of Americans opposed such a ban, with only 28% expressing approval.

It is important to recognize that in the ongoing cases cited above, the judges made good faith efforts to accommodate the religious beliefs of face-covering litigants while striving to ensure the fair administration of justice - a legitimate aim of the court.

According to 2011 research from Gallup, Muslims around the world feel that Western societies do not respect them. Gallup's research indicates that 6 in 10 Muslims globally would like to see the West treat Muslims fairly in the policies that affect them.

Arguably, good faith efforts and reasonable religious accommodations (like the ones made in the UK and Canada) matter - to the preservation of the rule of law, to maintain our liberal democratic values and to promote peace between diverse groups here and abroad. In fact, when addressing Muslims abroad, I have cited to these very instances of accommodation to illustrate how Islamic beliefs and Western values can be and often are reconciled.

Ultimately, the issue of face-covering veils may speak to a broader question though, one surrounding the role of conspicuous Muslims in our public institutions more generally.