RSS FeedNiqab, Sex Assault, And The Court: An Examination Of R v NS
In a unanimous decision in October 2010, the Ontario Court of Appeal affirmed that a sexual assault complainant may wear a niqab, a Muslim facial veil, while testifying. The Muslim Canadian Congress had intervened on behalf of the two accused men who had requested the order that the complainant remove her niqab. Upon the judgement’s release, Tarek Fatah, founder of the MCC, argued that the decision made “a fool of the Canadian judicial system and values of gender equality”. In fact, the court had paid careful attention to balancing the witness’s freedom of religion and the accused’s right to make full answer and defence. To date, Fatah is perhaps the only person to so openly argue that allowing a sexual assault complainant to testify in front of her alleged attackers in the clothes in which she feels safest is a denial of gender equality. For some context, it is worth noting that Fatah has long been a vociferous advocate of a total ban of the niqab in Canada. His response to attempts in Quebec to ban the niqab was to proclaim, “I welcome the rescue of all Muslim-Canadian women.” The wholesale paternalism of his language is revealing: to the extent that Fatah wishes to counter gender inequities, his position has persistently emerged from a patriarchal perspective that infantalises Muslim women by denying their agency in making sartorial and religious choices for themselves, even such highly contested choices as the one to wear niqab.
To be sure, generalised public discomfort around the niqab did inform most mainstream debate about the decision. However, in this paper I want to shift the discussion away from the Huntington-esque clash-of-civilisations characterisation advocated by Fatah to a more considered analysis of both the specific reasonings and the broader implications of the judgement. I argue here that the judgement actually signals a substantive attempt by the OCA to address some of the systemic inequities that entrench the pervasiveness of gendered violence in society.
FACTS AND HISTORY
The facts of the case are distressing, but not atypical for sexual assault cases. The complainant, N.S., alleged that between the ages of six and 11 she had been repeatedly sexually assaulted by her uncle and her cousin, the accused. In 1992, when she was 16, N.S. disclosed the assaults to a teacher, but the accused were not charged until 2007.
In 2004, as part of her practice of Islam, N.S. began wearing the hijab, a headscarf, and niqab, a veil that covers her face, whenever in the presence of males who are not her direct relatives. At the preliminary inquiry in 2008, after electing trial by judge and jury, both accused men sought an order that would require N.S. to remove her niqab before testifying. The preliminary inquiry judge ruled in favour of the accused. Read more
York U Rapist Appears Unrepentant
(Left) Daniel Katsnelson in 2005, slightly before the assaults occurred. (Middle, Right) The defendant, now known as Daniel Kaye, in more recent photos.
Want to get lucky with a couple of Jewish guys?
Those are words that will probably haunt several York students for the rest of their lives.
On Sept. 6, 2007, many York University students were enjoying Frosh Week. Some who weren’t even students were enjoying themselves a little bit too much.
Daniel Katsnelson and Justin Connort graduated from York in 2006, but were still engaging in the festivities by drinking close to the campus. They made their way to Vanier College around 2:45am, where they entering a total of six bedrooms under the pretense of helping a drunken friend.
Katsnelson has now changed his name to Daniel Kaye. The 25 year-old man lived with his grandparents in an apartment in Thornill, near Bathurst and Steeles, not far from where the assaults occurred. Police eventually identified Katsnelson from surveillance footage.
The exact chronology remains unclear based on media reports, but we do know there were several victims.
The man now known as Daniel Kaye proceeded to forcibly have sexual intercourse with a 17 year-old victim from behind after stating the now-famous line above. The experience was so memorably for Kaye that he captured it on photo. The pair only left when the victim, bleeding from her injuries, resisted a second attempt by Kaye,
F– this, let’s get out of here.
She continued to bleed for a week.
Not satiated, they continued to look for other victims in other rooms. He asked one woman to “make out” with him because,
I have never made out with a black girl.
They continued to search for victims for 90 min., before forcibly raping another 18 year-old student. Before this day she had never had intercourse. Yes, she was a virgin.
But what has shocked the public the most is the apparent lack of remorse of the young man.He even hoped his victims gained something positive from the experience, like learning to keep their doors locked. Presumably to keep people like him out.
When he pleaded guilty back in January he said,
The past two years have been hell for me.
If he thinks that is hell, he deserves to be in hell. His suffering is nothing compared to what I have gone through.
One of his victims dropped out of school as a result. Another laments the permanent trauma she continues to suffer from.
The first victim stated,
I have been given a life sentence through no fault of my own.
The second said,
I feel like damaged goods. I have lost my sense of independence. I am sure I will never be the same.
Connort pleaded guilty at the sentencing hearing last Friday, and was given 3 years in prison. The Crown is asking for 10 years prison for Kaye, registration in the National Sex Offender Registry, and providing a DNA sample. His lawyer is asking for only 3-5 years.
We expect sentencing by April 16.
Dimitris Lambrou, the Proud Lesbian Man
There are up to 350,00 Lesbians that are not gay.
Some of them are not seeking same-sex rights, but the protection of the word “lesbian” as a unique identifier of the inhabitants of Lesbos.
“My wife is a Lesbian, my daughter is a Lesbian and I am a Lesbian,” said the Greek man who started this amusing case in an Athens court last month.
Some History
Ken Blanchard provides some background,
According to Thucydides, it went down like this. The island of Lesbos rebelled against the Athenian Empire. The Athenians quickly subdued it, and then it was up to the popular assembly in Athens… to decide what to do with the rebellious islanders. The assembly voted to kill all the adult males, and sell the women and children into slavery. Frees up a lot of real estate. A boat was sent out (powered by rowers) to inform the marines on Lesbos as to their duty. But the next day a shrewd speaker convinced the assembly to reverse its vote. So they sent out a second boat, with a reward promised to the rowers if they got there in time. They did. And so the Lesbians were saved. The male Lesbians that is.
The name Lesbos apparently comes from the patron god of the island, who was the son of the Thessalonian hero Lapithos, or alternatively comes from the word for lush vegetation.
But its association with gay females is traced back to a poet that inhabited it named Sappho, who lived around 530-670 B.C.E. Sappho wrote on a number of subjects that included passionate prose that included targets of the same sex.
Rename the Island instead of Lesbians
Dimitris Lambrou, a contemporary inhabitant of the island, is petitioning the courts against the Greek Gay and Lesbian Union (Olke) from using the name “lesbian” in their name. He claims that the human rights of the islanders have been violated because it disgraces them around the world. Presumably, he would continue his case to the national and international level as well if he was successful.
Granted, Labrou does use some very strong language, claiming islanders have suffered “psychological and moral rape” from the “seizure” of the use of the word “lesbian.” Although women raping men is far more rare, it does happen.
One 36 year old woman in Spokane County in the U.S. was convicted in 1997 of torturing and raping a 42 year old man. South African papers reported last year that men in that country are being raped without the use of a condom, a scary proposition considering HIV/AIDS rates there. Then of course there are the stories of pedophilia, usually involving a female in a position of authority such as a teacher.
But rape of the psychological and moral kind, and corresponding damages, are unlikely even under Greek law.
Lambrou also claims the Greek government is so embarrassed that they are renaming the country’s third largest island as Mytilene.
There are several other reasons for viewing Labrou’s concerns with skepticism.
Not an Aggressive Act Against Women
Lambrou has explained his motivations,
I’m a fan of old values and traditions.
He publishes a magazine promoting ancient Greek culture and religion, and frequently criticizes the Catholic Church.
Jane Czyzselska says in Beware of Greeks bearing prejudices,
While lesbians in more than 80 countries are still denied their basic equal rights and more than 50 per cent of Britain’s lesbian youth are bullied, poor old Lambrou and his sister are upset that use of the word violates the human rights of the islanders and disgraces them around the world. Clearly, Hellenics hath no fury like a lesbian scorned.
However Labrou has said,
This is not an aggressive act against gay women. Let them visit Lesbos and get married and whatever they like. We just want [the group] to remove the word lesbian from their title.
A Genericized Global Trademark
The other issue with the claim is that the word “lesbian” is similar to a proprietary eponym, when a supposed brand name under intellectual property rights enters the colloqial landscape and synonmous with the general term.
Examples of genericized trademarks include Band-Aid, Kleenex, Jell-O and even Google. If your brand is too successful, you actually lose your intellectual property rights towards it.
He bases his claim on the first in time, first in right principle, which can still applicable for domain registration,
Lambrou said the word lesbian has only been linked with gay women in the past few decades. “But we have been Lesbians for thousands of years.”
The word “lesbian” has been used all over the world in this manner, and has been for some time.
Rictor Norton traces the use of the term in A Critique of Social Constructionism and Postmodern Queer Theory, “The ‘Sodomite’ and the ‘Lesbian,’ to at least 1732 in William King’s The Toast. By 1890, it had entered the Oxford University Dictionary, indicating a genericide for some time now.
Blanchard also adds the numerous sporting teams that use as their mascots or team names indigenous peoples and tribes that would seek similar intellectual property protection.
Absurd Consequences
Hauke Goos describes the scene in the court,
Lambrou sat in the gallery, surrounded by Greek gays and lesbians. He seemed convinced that the case was progressing in his favor. But then the opposing party’s attorney cross-examined the witness. What about twins whose bodies are joined at birth? he asked. Wouldn’t he, the witness, refer to them as Siamese twins? “Yes,” the witness replied. “Don’t you think the Siamese might object to that?” He hadn’t come to Athens to discuss the problems of the Siamese, the witness said curtly.
We can think of similarly absurd consequences, such as the residents of Dildo, Newfoundland issuing a suit against the sex toy industry. Steve Pitt commented in Legion Magazine in 1994,
No one can say with any firmness when and why Dildo acquired its name, but there are plenty of theories to choose from. Some say Dildo was named after a Spanish sailor of the same name who sailed the waters of the area. Others claim Dildo Bay was named after a ship’s part, a long metal cylinder. Still, others assert that Dildo, Nfld., is named for a certain species of cactus, the Dildo-Pear Tree, found only in the Caribbean. Still others hold to the theory that Dildo was named after an archaic term for a song’s chorus. The word is used that way by Shakespeare in A Winter’s Tale, Act 4, Scene 4: “…with such delicate burdens of dildos and fadings.”
And then there is the Amish town of Intercourse, Pennsylvania.
You can see where we are going with this…
Updates
The decision for the case was released July 18, and published today. The court rejected the plaintiff’s claim and said that the term could be used by gays, and said that Lambrou was free to appeal.
Michelangelo Signorile claims that Lambrou has been living in Canada for the past 30 years, which adds yet another interesting twist.
Back in Canada, legal lesbians are losing their jobs.
h/t Ainsley Brown of University of Westminster law and UWO law
Online Legal Reporting Trumps CNN
The video is hard to turn away from. A sobbing 16-year-old sits in her bedroom and, staring into a camera, says she has been raped.
This is how CNN covers a story of a 16-year old that posted a video on YouTube after the state attorney in Orange County, Florida dropper her case of being raped. [youtube]http://www.youtube.com/watch?v=N-1iIPiE38g[/youtube] They then go on to warn of the dangers of divulging too much personal information online, and tout the benefits of a counselling service that would probably be more effective. The problem is that the CNN reporter probably did not even bother to read case transcript, available free from the Orange County Clerk of Courts. Instead, the real story broke on The Smoking Gun, which related how the young girl changed her story of a consensual relationship after the case was dismissed, and had cited personal grievances and a break-up as the reason for the complaint. The case sheet itself leads with,
Due to the consensual nature of the sex encounter… I’m using prosecutorial discretion and am not filing the case…
Commentators on the case have wondered if the accused now has a case against her for libel and slander. Others have wondered how a small website could conduct a more thorough investigation than a multi-million dollar international news agency. The power and importance of small media web outlets are only beginning to be felt.
