Criminal Cover-up

Since Monday morning, I’ve been wanting to write a post about the French burqa ban. It’s not even that I’ve been putting it off because I was enjoying the last rays of sunshine, or busy trying to write an actual chapter for my PhD, or even that I was in bed with a bad cold. It’s just that I couldn’t find how to write it. I couldn’t think of what I would start with and which words would convey my dismay and sadness at this opportunistic and un-thought-through piece of legislation…

And then I realised that, as a lawyer, these were the exact words I needed: that of the actual law. So I went looking and found the new website dedicated to the ban (what’s next? a facebook fan page?), setting out the new rules and their inspiration. And guess what? They turned out to be just as depressingly inspiring as I’d hoped they would be…

What ?

The law, voted on the 11 October 2010 and that came into force last Monday, doesn’t actually expressly ban the burqa or even the niqab. In fact, it states that “no-one can, in the public space, wear an outfit designed to hide ones face.” The website (and the downloadable flyers, in case you fancy printing some out for yourself…) helpfully explains that this means “outfits which prevent identification. The face need not be totally hidden, for example a piece of cloth which hides the face but the eyes is also forbidden”. But, before you think they are targeting anyone in particular, this can include but isn’t limited to: “balaclavas, integral veils (burqa, niqab), masks and any other accessories or items of clothing which, whether on their own or associated with other items, hide the face.”

There are exceptions, like the fact that you can still wear a motorcycle helmet in public, or hide your face for health or professional reasons (as long as you can justify it) or also for sports and artistic, traditional or religious demonstrations (which would make covering your face up for a Ku Klux Klan meeting acceptable I guess…)

Where ?

The ban applies to all public spaces, including roads, public buildings and any place open to the public. This seems to include religious establishments open to the public too, although, as the highest French court pointed out, it would be moronic counterproductive against the freedom of religion to go all the way into mosques to implement the ban… The police will be allowed to intervene however, if the religious authority of the place recognise it as necessary. Whatever that may mean…

The fact that it applies to all public spaces also puts it apart from the Turskish ban. In fact, although there is a law prohibiting the wearing of headscarves in Turkey, it only applies to government buildings and in particular universities, and does not include all public spaces. This is a significant difference, and such a ban does make more sense, as it would do if it was implemented in France. Turkey and France, despite very different cultural and religious backgrounds, are both states with a strong secularist tradition dating back from the beginning of the 20th century, and in the name of the separation of church and state, the imposition of a ban in government buildings does at least have more of a rational and legal basis.

Consequences

There are two categories of offences created by the law. The first one targets any person (in keeping with the fiction of ‘this applies to everyone not just an incredibly small number of women of a particular religion…’) who covers their face in public. Such person will be subject to a fine of 150 euros (about £130) and the (far scarier) possibility of a ‘citizenship course’, designed to “remind the person in question of the Republican values of equality and respect of human dignity”, which might be seen as ironic…

The second offence created is directed at any person who forces another to cover their face in public. In that case, the offence is much more serious and the punishment can be a fine up to 30,000 euros (£26,500) and up to one year in prison, although both the fine and the term double if the person being forced is under 18. In that case, it is up to the court to determine the existence of constraint, which would then (but only then) cancel the criminal responsibility of the person concealing their face.

And while until now the law seemed to preserve a (superficial) sense of universality and gender neutrality, the definition states that it will be an offence “to force someone to cover their face by threat, violence, constraint, abuse of authority or power because of their gender”…

Why ?

This is the biggest issue with this exercise in illiberal and ill-thought-through criminalisation. Making a particular behaviour criminal is obviously a very serious decision, because of the consequences but also because of the stigma it entails. This stigma is also what can make it a powerful tool for communicating about what the state or society considers a proper way to behave.

But because it has such serious consequences (generally a fine or prison sentence), the criminal law should be limited to prevent behaviour that causes specific harm to others. If I stab you, I cause harm to you but also to society in general as I make it a more dangerous place to live in. According to this, criminalising the husband, father or brother who forces a woman or girl to wear a burqa or niqab against her will is indeed justified. They have caused harm not only to their wife, daughter or sister by forcing them to wear something against their will but also to society by abusing them.

The harm caused by someone wearing a burqa or niqab without being forced is more difficult to establish though… One could potentially argue that it is justified for security reasons because it prevents identification in public, although this is not how the law sees it. In fact, the above mentioned website to celebrate publicise the ban states that the law is the expression of the

will of the national representation to reaffirm solemnly the values of the republic and the requirements of living together. Veiling / Hiding one’s face is going against the the minimal requirements of life in society [and it places the person in question] in a situation of exclusion and inferiority incompatible with the principles of liberty, equality and human dignity affirmed by French Republic.

The omission of fraternity from the principles of the Republic is perhaps telling…

So the ban is not based on a particular harm caused to an individual or even a wider section of society, but rather a paternalistic piece of legislation reminding people of how they should behave in society. While this kind of measure may be justified for example in terms of road safety or health and safety because of the very real risk to human life, it seems a little more difficult to accept in the context of moral and religious values…

What’s more, the criminal law should apply to all equally and not be designed to target or single out a particular class in society. The almost entirely neutral wording of the law in question obviously fools no-one that this ban is not about balaclava or wearing masks in public, but very much about Muslim women covering up their faces…

And now ?

The biggest issue with this new ban, however, is what the results will most likely be… The intended targets and potential victims are Muslim women who wear a burqa or a niqab, an already very small minority in France, which will potentially be even more excluded. The announcement of the ban has already given rise to a more public animosity against them, for example in an incident where a lady in a shop pulled off the face veil of a lady in front of her because she claimed she felt offended by it… Arguably, the ban validates and encourages this sort of attitude, rather than promotes dialogue and understanding and it could even lead to a backlash against women who wear a hijab.

Indeed, the ban will potentially alienate women who wear the burqa or the niqab even further.

For those who are forced by abusive men in their family to wear such veils, they will probably be forced to go out less and stay indoors so as to avoid the fines and arrests… And as for those who are not forced, while many might feel they are misguided, a forceful ban only reinforces the view that they are no more than the piece of cloth that covers them, before being a rational person, able to make their own decisions, no matter how misguided…

People often say that hard cases make bad law. This is because the criminal law is a blunt tool that does not deal with fine lines and sensitive issues well. It can easily cause more harm than intended when brought down on cases fraught with underlying tensions and misunderstandings…

In a country where the ghettoisation of Muslim population has long been decried and racism is still rife in public and private life, who knows what the collateral damage of that blunt edge of criminalisation will be.

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