The right to face your accuser

DrGreenthumb · March 18, 2009

I'm amazed that people are completely unwilling to understand and explore cultural differences. Everyone should follow Western ethnocentric traditions. Native people should be put in resident schools, Inuit should stop clubbing seals and Muslim women should stop wearing head coverings. Our way of life is not necessarily the best way of life for everyone. Maybe we should live off the land, instead of giving up our freedom to a capital system, and perhaps Western women should stop debasing themselves by dressing sexually suggestive around strangers. Maybe. Maybe not. People should be able to live the life they choose, so long as it doesn't forcibly infringe upon the freedoms of others. And honestly, I'm unconvinced that a trial will be more "fair" because the jurors can see the face of the accuser. Two important questions have been raised: what if a juror is blind and what if the accuser is a corporate entity. I'm sorry, but the opinions of some on here seem to be a little too ethnocentric Islamophobic for me.

Get a grip! As far as I'm concerned they can cover their head and face all they want...except when on the witness stand. As soon as they are done testifying they can recover themselves.

The blind thing is irrelevant. The blind person is definitely at a disavantage when trying to determine if someone is being truthful, but that is no reason for us all to to limit our own ability to determine truthfulness. Should we all cut off our legs so that we will have the same trouble climbing stairs as a paraplegic? Thats just dumb.

This has nothing to do with racism, and everything to do with fairness. If we can use our religious beliefs to exclude ourselves from aspects of the justice system we don't like, then I declare myself a Rastfarian and the pot laws no longer apply to me as they interfere with my religious beliefs.

cybercoma · March 19, 2009

What law is she breaking by wearing her head scarf?

Also, you say if someone wants to accuse another person of a crime, they need to play by rules that are unnecessarily biased against particular cultures. How about they make a rule that you have to own at least $500,000 worth of property before you can accuse someone of a crime? Maybe that would be a good idea too.

DrGreenthumb · March 19, 2009

What law is she breaking by wearing her head scarf?
Also, you say if someone wants to accuse another person of a crime, they need to play by rules that are unnecessarily biased against particular cultures. How about they make a rule that you have to own at least $500,000 worth of property before you can accuse someone of a crime? Maybe that would be a good idea too.

What the hell are you talking about? Who said she is breaking a law? I said when a person is being questioned on the stand they should have to show their face so people can better judge wether they are telling the truth. The same goes for anyone, I don't give two shits what religion or culture you are. if I'm called as a witness can claim some religious protection and cover my face with a bandanna and wear dark sunglasses?

Is it against other cultures to mind their own business? I'm not sure what part culture has to play in what I said about snoopy neighbors who like to call rat-lines anyway?

I'm the first to stand up for minority rights when the immigrant haters in here are spouting off so you are way off base in suggesting my opinion is racially motivated.

In fact in another thread I'm being called a bigot against Christians, even tho I am Christian

Edited March 19, 2009 by DrGreenthumb

cybercoma · March 19, 2009

You drew a comparison to breaking drug laws as a rastafarian, so I thought you were implying laws were bein broken.

kimmy · March 19, 2009

How? By daring to explore what it takes to reach ' fair'?

By refusing to address the issue of the defendant's right to a fair trial. While all three of you have attempted to tap-dance around the issue, none of you have actually attempted to address it.

To suggest that there's such a thing as fairness to victims, too?

Once a case is in court, no. Once a case is before the court, the paramount concern is the fairness of the trial. Once a case is before the court, the worst outcome is if an innocent person is wrongly convicted. That is why the assumption of "innocent until proven guilty" is the cornerstone of our legal system.

If a victim won't come forward because prosecution is as traumatic as the assault, that's going beyond 'fair trial' for the accused to giving them immunity!

Guess what: testifying is traumatic for sexual assault victims of all religions and backgrounds, male and female. Should we allow everyone who takes the stand to accuse someone of sexual assault to wear a mask to make the experience less traumatic?

By wondering about our cultural norms, questioning the consistency of some of our assumptions, or wondering what it might feel like if the shoe was on the other foot?

Give me an example of how the shoe might be on the other foot.

Are you asking me to imagine how things would be if this case was tried under Islamic law instead of Canadian law? Because if that was the case, this woman could wear her bag to the hearing, and it wouldn't matter because her word would be worth only half that of the man she is accusing. You can look that one up: two women are required to counter the word of one man under Islamic law.

If the shoe were on the other foot, she'd be a whole lot worse off than she is under Canadian law, which adds an ironic twist to this whole affair.

Look, I'm darned uncomfortable about Islamic coverings, but I choose not to knee-jerk into wholesale condemnation of them without first clarifying for myself what it is that I'm reacting to. To do that, I have to question some nuances.

I'm not condemning their choice to wear bags over their heads. They can wear any damned thing they want.

However, in a criminal trial the right of the accused to a fair trial is paramount. Depriving the jury of a key means of evaluating the truth of the accuser's testimony is absolutely a threat to the right to a fair trial. It is absurd to argue otherwise.

I'm not completely convinced that jurors need to see faces-- but neither am I unconvinced.
Nor am I engaged in 'debate', assuming a particular POV. The point here, for me, is to talk about it, and perhaps come to a better understanding.

You don't seem terribly interested in understanding. You seem only interested in advocating for this woman.

You seem to have established conviction about it... so... convince me.

Whether you're convinced or not is of little value. Precident is not on your side. And one judge has already ruled in favor of the defense lawyers on this issue. It seems that in light of established legal tradition and the ruling of one judge already, the onus would be on you guys to argue that the defendant's right to a fair trial is not compromised by allowing the accuser to conceal her face while testifying.

So far none of you have done anything to present an argument as to why. None of you have attempted to dispute the simple biological fact that humans use facial expression as a means of communication. In a trial that is likely to be a "he said/she said" clash of testimony, you are advocating that the jury be deprived of one of the most important means of determining whether she actually believes what she says on the stand.

The best you guys have provided is ... what about blind jurors? Well, since either lawyer is able to reject a potential juror for any reason they wish, the defense has only themselves to blame if a witness is able to successfully dupe a blind juror. I must also point out the statistical unlikelihood of having 12 blind jurors. Yourself and cybercoma and guyser, however, would have us blind all 12 jurors. You should all think about whether this is really what you want for the Canadian justice system.

-k

kimmy · March 19, 2009

If only that were the case law.

Cite?

Are you smarter than the judge who made the initial ruling that the niqab does indeed interfere with the defendant's right to mount a legal defense?

-k

kimmy · March 19, 2009

There are the multi-culturalists and there are the assimulationalists. Those that want assimulation usually do not want it for the fact that it may create equality. They want it out of sheer spite and a need for domination. Perhaps they get glee out of insulting a Muslim woman and expect them to strip down and bare some ass in short shorts on a summer day so they can oggle some hidden and exotic booty. Utlitarian thinkers dispise human dignity - as some dispise woman that will not enter into western style whoredom..that creates equality in the most base way.

...and meanwhile back on Planet Oleg, if you're not wearing a bag over your head then you're a whore.

Go drive off a cliff, asshole.

-k

cybercoma · March 19, 2009

...and meanwhile back on Planet Oleg, if you're not wearing a bag over your head then you're a whore.
Go drive off a cliff, asshole.

-k

Calling it a "bag over the head" is the same thing as being called a whore for dressing the way you do; neither is appropriate.

As for proving that something is not the case, the burden of proof is on you to show that her clothes make it too difficult to mount a defense. Human beings do use facial expression for communication and I can appreciate that part of your argument--all this stuff about the precedent of a single judge's controversial decision does not prove that a defense cannot be mounted. However, how much of that facial communication is expressed with the eyes and the muscles around the eyes? Was she wearing the type of head covering that made it impossible for her eyes to be seen? Regardless, do you not believe that most jurors, not of her culture, would be a little more apprehensive to accept her testimony given that they could not read those expressions clearly? Would that not offset your perceive damage to the defense? Furthermore, the way a person's speaks can also be used to determine whether they are telling the truth or not. The tone and pace of a person's speech can be an indication; however, that may be hindered by language difficulties, does this mean the defense is hindered by a language barrier and therefore only people that speak english fluently should be allowed to give testimony?

I doubt we will come to terms on this issue. As long as you continue to see her clothing as nothing more than a bag over the head, we will disagree. You find nothing appreciable about her culture and view it as backwards and primitive. In some cases this is true, but bashing someone for the clothes they wear is not the same as fighting discriminatory laws and customs. This type of ethnocentrism, that sees other cultures as backwards and primitive without realizing the same could be applied towards former, has lead to some of the most vile atrocities in history, and although I'm not perfect, and falter at times, I try not to concede to it.

Molly · March 19, 2009

In using 'shoe on the other foot', Kimmy, I was considering the emotional reactions of someone forced to cover or uncover themselves beyond their social comfort level.

I don't know your gender, or whether you've ever found yourself in a circumstance of being embarrassingly underdressed, but I assume you can identify with the nearly universal nightmarish dream of finding onesself on stage, naked. I wonder whether asking a Muslim woman who is normally highly covered, to bare her face in a public place, would be any different, from an emotional perspective, from asking a culterally western woman who would comfortably wear short-shorts to the mall, to remove her shirt.

IF it is (definitely an IF) then it's sufficiently traumatic to be avoided unless the need is EXTREMELY compelling.

(I was not wandering off into Shariah, or theology at all.)

......................

None of us (that I noticed) questioned that facial expression is an aid to discerning truthfulness.

We have, however, questioned how valuable it is to that end, and how consistent we are about placing value on it. (Not consistent at all, given our easy, unquestioning acceptance of any number of other facial coverings and disguises, and barriers to visibility of a face.... 'masks', if that's what you want to call them.)

So... is it of that EXTREMELY compelling value?

Edited March 19, 2009 by Molly

Molly · March 19, 2009

'Fair' does not mean irredeemable one-sided. Giving the accused a free ride is not 'fair'.

Certainly we must err to giving the accused every reasonable opportunity to defend himself, but not to the point of making justice unachievable, and truth unavailable.

Punishing victims to the point that they refuse to come forward goes far beyond 'fair'.

DrGreenthumb · March 19, 2009

I wonder whether asking a Muslim woman who is normally highly covered, to bare her face in a public place, would be any different, from an emotional perspective, from asking a culterally western woman who would comfortably wear short-shorts to the mall, to remove her shirt.

That comparison would have some relevance if you could determine truthfulness by examining breast expressions.

I don't see how it applies to this situation unless breasts have trouble making eye contact when the person is lying.

kimmy · March 19, 2009

None of us (that I noticed) questioned that facial expression is an aid to discerning truthfulness.

Human beings do use facial expression for communication and I can appreciate that part of your argument--

You both just conceded that having her face covered detracts from this defendant's right to a fair trial, so this debate is pretty much over.

***

all this stuff about the precedent of a single judge's controversial decision does not prove that a defense cannot be mounted. However, how much of that facial communication is expressed with the eyes and the muscles around the eyes?

It's not just the earlier ruling in this case that establishes the precident, it's a principle that exists in other rules as well. We don't allow people to testify by telephone. If children are allowed to testify in separate hearings, we show the jury video, not just audio.

A defense still *could* be mounted if Meryl Streep were brought to the witness stand to act out the witness's testimony on her behalf, but that doesn't make it fair to do so.

This woman will before the court making accusations that could land someone in prison. Even if concealing most of her face doesn't completely disguise her, it would certainly make it easier for her to make untruthful statements, which increases the likelihood of a wrongful conviction. That's the paramount concern for a presiding judge.

In using 'shoe on the other foot', Kimmy, I was considering the emotional reactions of someone forced to cover or uncover themselves beyond their social comfort level.
I don't know your gender, or whether you've ever found yourself in a circumstance of being embarrassingly underdressed, but I assume you can identify with the nearly universal nightmarish dream of finding onesself on stage, naked. I wonder whether asking a Muslim woman who is normally highly covered, to bare her face in a public place, would be any different, from an emotional perspective, from asking a culterally western woman who would comfortably wear short-shorts to the mall, to remove her shirt.

IF it is (definitely an IF) then it's sufficiently traumatic to be avoided unless the need is EXTREMELY compelling.

(I was not wandering off into Shariah, or theology at all.)

Witnesses have been required to expose themselves on occassions when it is relevant to the trial. Photographs of injuries to private areas of victims, for example, or if a witness has an identifiable mark on their body that assists in making an identification or proving that an attacker exposed himself to the victim for example.

If it is relevant to the trial, then modesty has not been an obstacle.

***

Calling it a "bag over the head" is the same thing as being called a whore for dressing the way you do; neither is appropriate.
...

I doubt we will come to terms on this issue. As long as you continue to see her clothing as nothing more than a bag over the head, we will disagree. You find nothing appreciable about her culture and view it as backwards and primitive. In some cases this is true, but bashing someone for the clothes they wear is not the same as fighting discriminatory laws and customs. This type of ethnocentrism, that sees other cultures as backwards and primitive without realizing the same could be applied towards former, has lead to some of the most vile atrocities in history, and although I'm not perfect, and falter at times, I try not to concede to it.

Ok, it's not a bag, it's a niqab. Likewise, it's not creationism, it's Intelligent Design; it's not mutilation, it's female circumcision; it's not burning widows alive, it's a suttee. etc etc.

To be clear, I am not making this argument because I think having to wear a niqab is stupid (although, I do think it's stupid. Even most Muslims don't think it necessary, btw.)

I am making this argument because I believe very strongly in the supremacy of Canadian law. We might not have a unified culture, but we still have principles (particularly the right to a fair trial) can not be compromised.

-k

guyser · March 19, 2009

Are you smarter than the judge who made the initial ruling that the niqab does indeed interfere with the defendant's right to mount a legal defense?
-k

Am I smarter? Dont know the man so cant hazard a guess.

He made a ruling in this case.

Of course it doesnt alter the fact that one does not have a right to see the face of the accuser. That may come about from this, but for now, it doesnt.

We don't allow people to testify by telephone.

We allow people to testify via audio.

cybercoma · March 19, 2009

I didn't concede that it detracts from the defendant's right to a fair trial. I said facial expression is a part of communication, true, but I don't see how it detracts from their right to a fair trial any more than someone with a big bushy beard or dark glasses because they're blind would. The bearded man is not forced to shave and the blind person is not forced to take the glasses off. She, as the accuser, is sitting in the courtroom facing the attorneys and answering the questions. That we convey meaning with our face is understood presumably by the jury, so if a covered accuser would probably weaken her testimony. The jurors, not able to see her face, would take that into consideration. The defendant has a right to a fair trial, but a covered accuser does not make it unfair. The head covering probably offsets any ability to lie by harming her ability to communicate effectively. And why does it always have to be about lying? What if she's telling the truth and the head-covering affects her right to a fair trial as the accuser? You're not saying she should remove it, so the jury can understand her better. You're implying that she's going to lie and that they need to be able to catch her. Not once have you given the accuser the benefit of the doubt and taken your point from that angle.

Molly · March 19, 2009

And having revealing pictures presented is substantially different from being required to strip down to present the private part in open court!

If unlimited intimidating trauma to witnesses is only 'fair' in the name of offering effective defense, then it follows that rape shield laws should be repealed, and no event in a complainants, or witnesses past should be off-limits- regardless of relevance.

That would sure clear up any backlog in the court system, or risk of false accusation. No one would be willing to accuse, or testify.

Edited March 19, 2009 by Molly

Oleg Bach · March 19, 2009

Because our sytem is British based and absoulutely advesarial (barbaric) - attacking the accuser with vigor is standard practice - and if it is a woman - they show no mercy..It's because most of our laws are antiquated and religously created - the protection of a rich mans property is still what it's about. Woman are still when put in this position considered property - IF this was say a conservative senators daughter or wife - all hell would break loose because they know who's property she is - seeing it's some Muslim - the courts seek to cause her offence - even if she were not dressed with a vale ..they would attack her out of sheer spite - so the face of the accuser is not the issue - it is who the accuser is - and the courts are hostile to this group.

kimmy · March 20, 2009

I didn't concede that it detracts from the defendant's right to a fair trial. I said facial expression is a part of communication, true, but I don't see how it detracts from their right to a fair trial any more than someone with a big bushy beard or dark glasses because they're blind would. The bearded man is not forced to shave and the blind person is not forced to take the glasses off. She, as the accuser, is sitting in the courtroom facing the attorneys and answering the questions. That we convey meaning with our face is understood presumably by the jury, so if a covered accuser would probably weaken her testimony. The jurors, not able to see her face, would take that into consideration. The defendant has a right to a fair trial, but a covered accuser does not make it unfair. The head covering probably offsets any ability to lie by harming her ability to communicate effectively.

Allowing the accuser a concealment that could allow her to lie more effectively most definitely puts the fairness of the trial into question.

Gambling that the jury's mistrust of masked people will balance this out seems to do a disservice to everyone involved.

And why does it always have to be about lying? What if she's telling the truth and the head-covering affects her right to a fair trial as the accuser? You're not saying she should remove it, so the jury can understand her better. You're implying that she's going to lie and that they need to be able to catch her. Not once have you given the accuser the benefit of the doubt and taken your point from that angle.

The accuser doesn't get the benefit of the doubt in our system. The defendant does. Remember that whole "presumption of innocence" thing?

I am not saying that she is "going to lie", I am pointing out that there is a possibility that she might, which is true of any witness who takes the stand at any trial. And if she does lie, then yes, they need the chance to catch her.

How can you possibly suggest we should approach it with the assumption that she's going to tell the truth?

I am absolutely gobsmacked that you'd post something so utterly foolish.

And having revealing pictures presented is substantially different from being required to strip down to present the private part in open court!

I really don't care if it's embarrassing for her. Putting someone in prison is the most serious thing we in Canada can do to someone as a society. The defendant deserves to defend himself to the fullest, and if the price of being sure is a few minutes or a few hours of embarrassment for someone, that is a small price to pay.

If unlimited intimidating trauma to witnesses is only 'fair' in the name of offering effective defense, then it follows that rape shield laws should be repealed, and no event in a complainants, or witnesses past should be off-limits- regardless of relevance.
That would sure clear up any backlog in the court system, or risk of false accusation. No one would be willing to accuse, or testify.

Who said "unlimited"? Lawyers do not have unlimited latitude when they are making their case. The are permitted to ask questions relevant to the case, and the judge and opposing counsel will have little patience for anything that strays from the topic, particularly if it is an attempt to humiliate or intimidate the witness.

The rape shield law is a case in point. It is not an absolute: in situations where the victim's sexual history is relevant to proceedings, the judge will allow questioning; this is determined on a case by case basis at the request of the defense lawyers.

Hypothetically, let's say... if a woman testifies that the defendant gave her herpes when he assaulted her, it might be highly relevant to know that she had sex with 5 other guys the same weekend.

One that I heard a while back was a case where a young teen had accused a man of sexually assaulting her. She provided graphic descriptions of sexual acts in her testimony. The judge ruled that the jury *did* need to know that the girl had been sexually active for several years already, because concealing the information could lead the jury to believe that the only way a girl this young would have such detailed knowledge of sex acts would be if the defendant had indeed assaulted her.

Do you imagine that you've provided some brilliant counterexample where the defendant's right to a fair trial is not placed above the victim's right to not be embarrassed? Because you haven't. If the defendant's lawyers can provide a compelling argument as to why discussing the victim's sexual past is relevant to proceedings, then they will be allowed to discuss it, embarrassing or not, rape shield law or not.

-k

kimmy · March 20, 2009

Am I smarter? Dont know the man so cant hazard a guess.
He made a ruling in this case.

Of course it doesnt alter the fact that one does not have a right to see the face of the accuser. That may come about from this, but for now, it doesnt.

This whole "right to see their face" is a red herring. It's not the reason that people should be concerned about this. It was never the basis of the argument presented by the defendant's lawyers, either.

We allow people to testify via audio.

While I'm no lawyer, I'm highly skeptical that audio-only testimony is permitted except in the most extraordinary circumstances. Note that this is different from admission of audio recordings as evidence (such as 9-1-1 recordings, wiretaps, etc.)

-k

Argus · March 22, 2009

Islamic males should just be honest and put the woman in a steel box. They could let her out to breed then put her back - It's not saying much of the sects that adhere to the black head to toe robe - Where did that originate? Was it because the Muslim male mind is so weak that the very sight of a female causes an errection that is uncontrolable?

As dumb as that is - it's actually not that far from the truth.

Bearded cleric on TV: "Women's hair emanates rays that excite men. That's why women should cover their hair. If in fact it is really more civilized to go without the veil, then animals are more civilized than we are..."

And I would think, apparently, that if that hair is blonde it's even worse!

Edited March 22, 2009 by Argus

Argus · March 22, 2009

Your post is completely sexist in that it implies Islamic women are forced in all cases by their husband to wear headscarves or to cover their faces.

The cultural domination of men, not to say the PHYSICAL domination of men, and the political and religious domination of men in Muslim societies is very nearly total. If women "choose" to wear bedsheets due to their culture it is men who have created that culture and put that pressure on the women.

Argus · March 22, 2009

Male circumcision has been practiced for centuries and not many western people have a big problem with it but I could see how other cultures would find the practice barbaric.

It's not the same thing, by any means. The practice is far safer, and the circumcision does not make men incapable of having an enjoyable sex life. Furthermore, the intent behind the practice has always been health, not morality.

The circumcision of women is not done for health reasons, but for moral reasons. It makes it virtually impossible for them to enjoy sex, is extremely dangerous, and it's only purpose is to ensure that they don't become "sluts".

Which under a Muslim world definition would be, I guess, any woman who has the slightest interest in sex or men.

Argus · March 22, 2009

- as some dispise woman that will not enter into western style whoredom..that creates equality in the most base way.

Would you care to enlighten us on what you regard as "western-style whoredom"?

Argus · March 22, 2009

The idea that one has the right to see the face of the accuser is false. One has the right to face his accuser , but that is entirely different.

That is semantic bullshit. We don't say an accused has the right to hear his accuser for a reason.

We need to see their face. If it is true we allow blind people to be jurors that would only be because of institutional cowardice imposed by politically correct morons such as those I've been reading on this topic.

Argus · March 22, 2009

What about in child-rape cases, or any other crime involving serious emotional trauma? It would only cause further stress & harm to the victim to be forced to face their accused.

Tough noogies.

Argus · March 22, 2009

I'm amazed that people are completely unwilling to understand and explore cultural differences

We understand cultural differences. We just aren't willing to bend over backwards to accommodate them at any cost - as you appear to be.

Everyone should follow Western ethnocentric traditions.

I agree. They are far superior to anyone elses, less barbaric and backward, and more accepting of diversity.

Our way of life is not necessarily the best way of life for everyone.

Then those who feel uncomfortable are free to not come here. There are plenty of places where women wear bedsheets without being given a second glance. They are free to live there.