What Is Anti-Muslim Bias?
Imagine being a woman in your 70s bound to a wheel chair. You have just lost your husband. You are pleading with the justice system to enforce your rent control rights in an apartment where you have been paying rent, for over 20 years. You wear a scarf on your head and you are Iranian. Then, imagine being wheeled into a courtroom where a group of jurors stare at you and you immediately fear that they will be unable to look beyond your accent, scarf and Middle-Eastern name. This is the experience of many people seeking justice in U.S. courts after 9/11. This is what they face when they stand before a jury that is supposed to comprise their peers.
The case of the Iranian woman I happened to be involved with occurred in a large metropolitan area of the Western United States. The plaintiff was Persian (not Muslim) and wore a head scarf. Anti-Muslim bias is so pervasive that many people in the U.S. do not distinguish between a woman from Iran wearing a Muslim head scarf (hijab) and a Christian woman from Iran wearing a head scarf. From my conversations with jurors it was apparent that their decisions were impacted by an anti-Muslim bias that affected the credibility of the plaintiff as well as jurors’ perception of the facts and evidence in this case.
I have been on many cases where attorneys have been worried about their client’s skin color, ethnicity, or religion. If they have a Hispanic client, they want Hispanic jurors. If they have an African American client, they want African American jurors. Picking a jury is never that simplistic. However, given that race and ethnicity can be significant in some cases, what do you do if you have a Muslim defendant or plaintiff? Or if you have a Middle Eastern client? Do jurors presume that they are Muslim? What if they had a Muslim name? What kind of impact does a party’s real or presumed Muslim status have on jurors’ perceptions and decisions? I will begin with exploring Muslim bias in America, then describe cognitive processes involved in discrimination and finally look at how to manage actual or perceived Muslim bias in court.
It is important to step back and see how mainstream institutions like the U.S. media and government have normalized and given permission for anti-Muslim bias in the guise of anti-terrorist preparedness and nationalist pride. In the national climate created by the Bush administration post-9/11, most U.S. residents with anti-Muslim feelings do not perceive their feelings as bias, but as a justifiable and rational response to danger. In cases with Middle Eastern clients, one is facing not only perceived religious bias but also national origin bias. The demonization and vilification of Muslims and Middle-Eastern people have been the ideological pillars of America's “war on terror.” Terms such as “Axis of evil”, “rogue States,” “failed nations,” and “Islamic terrorists” have served as propaganda to separate Muslims and non-Muslims.
The battery of incidents, events and policy pointing to a systematic development of anti-Muslim bias is extensive. The extent of anti-Muslim prejudice became obvious during last year's presidential campaign, when opponents of President-elect Barack Obama spread rumors that he was a Muslim as a line of attack. The rumors also suggested that he was loyal to terrorists and that he was not really an American, showing the strong association between the Muslim faith, Arabic names, anti-Americanism, and terrorism. There have been many reports of hate-crimes and anti-Muslim bias in daily life such as the well-known “no-fly” lists that have been the source of long delays in immigration for many who have a Muslim name or look like a Muslim based on stereotypes or misleading information.
The Council on American-Islamic Relations reported that the primary factors triggering discrimination were an individual’s ethnicity, religion or a “Muslim name.” “Many acts of discrimination occur due to the perceived ethnicity or religion of the victim. Many Sikh Americans, who are neither Muslim nor Arab, have been targets of anti-Muslim bias due to their appearance.”
A USA Today/Gallup Poll published in 2006 reports, “Nearly one quarter of Americans, 22%, say they would not like to have a Muslim as a neighbor” and “Nearly four in ten Americans (39%) say they do feel some prejudice” toward Muslims.
A Cognitive Explanation for Anti-Muslim Bias
Stereotyping, affect, and social distancing are three theories of processes by which discrimination takes place.
1) Stereotyping explains general anti-Muslim bias.
Stereotyping is powerful. It involves the attribution of a set of characteristics to a group of people. It is a fast and simple way for the mind to classify a person or groups of people and can be useful and positive. When information about the stereotype is consistent and visible, it is easier to label a group negatively or positively. Therefore, a hijab or kufi may automatically transfer negative connotations to the plaintiff or defendant and may trigger feelings of fear or distrust.
Changing a person’s stereotypical evaluations and reactions is difficult even when contradictory evidence is presented. As our society stereotypes groups such as Muslims, they are both conceptually and actually pushed into an out-group. Symbolic activities (media stories, government notices, written policies that suggest ethnic profiling in security work) flag key markers such as the wearing of head scarves as signs of Muslim identity, terrorist inclination and danger and suggest that people who bear these markers are fundamentally different from you and I, who may not bear these markers. This conceptual work then becomes translated into concrete social behaviors such as avoidance of interaction with perceived Muslims, physically separating out perceived Muslims from others in public situations that require security screening, and public expressions of hatred or anger towards people perceived as Muslim. These activities are what create an in-group and an out-group. Identity and self-esteem through belonging is attached to the in-group so we form positive views of members of the in-group and in turn assign preferential treatment. By comparison, people classified in the out-group are viewed and treated more negatively. This is the basis of racial inequality.
2) Affect and emotion contribute to bias as well.
Stereotyping can bias decision-making, even for people who consciously do not want to be biased. Although stereotyping is useful in providing a framework to understand how jurors base their decision-making on pre-conceived notions of groups, it is helpful to examine how affect works in non-conscious discrimination and bias. Perception, affect and cognition involved in making preferences and discrimination involves a complex sequence of events. The resulting emotion is often difficult to verbalize as people may not know or understand exactly what they are feeling or be able to articulate what they are feeling accurately. Jurors are often not candid with attitudes about minorities.
3) Social distance separates many American jurors from Muslim litigants.
There are many pre-judgments and cognitive processes that have been put into motion, one of which is social distance. Social distance describes the distance that separates individuals psychically, and is distinguished from spatial distance. It is a useful tool to understand the degrees of closeness which define social relations generally and the difference that sets us apart in people’s minds. The theory of social distance shows the origins of race consciousness that separates us from races who we do not fully understand. In a USA TODAY/Gallup Poll (2006) of 1,007 Americans, 58% said they had never met a Muslim. And those who did know Muslims felt a lot better about them. An important question to ask a jury panel would be about their experience with Muslims.
Managing Anti-Muslim Bias or Perceived Muslim Bias In Trial
The approach taken in voir dire, opening statement, witness preparation and closing argument will vary depending on the specific claims of the case. If the case is about discrimination there will be more broad inspection of juror bias. If the case involves a person who looks Muslim or is Muslim but is not related to discrimination, such as the case mentioned in the opening of this article, the potential discriminatory factors will be handled differently depending on the facts of the case. The approach will also change according to the client’s position as plaintiff or defendant in the case.
Use a Juror Questionnaire
If you have a Middle-Eastern client or a Muslim client raise with the court doing a juror questionnaire that will weed out the people with biases. Juror questionnaires can help to eliminate overtly biased jurors. Discover jurors’ relevant attitudes and experiences and use carefully phrased questions to determine their contact and association with Islam and Muslims and/or the relevant ethnic group. The best way to do so is with a written juror questionnaire combined with follow up oral voir dire.
Focus Your Voir dire
Identify and eliminate jurors with strong biases and stereotypes. Use effective cause challenges if you discover obvious prejudice. The discovery of these jurors will be just the tip of the ice-berg. During voir dire challenge jurors’ assumptions that the specific plaintiff/defendant does not fulfill the stereotype. To challenge jurors’ assumption, your client must be consistently different from the stereotype. Use examples of behavior that are inconsistent with a known stereotype, not one that is not a recognized stereotype. If their impression is that Muslim women are oppressed, implicitly point to evidence that your client is not.
Due to bias, opinion and experience, it is difficult to challenge stereotypes and overcome them in the course of a trial. It is as or more powerful to gain access to jurors’ core beliefs and create a contradiction between their core beliefs and their bias towards the actual client. Create themes that relate to the importance of justice for all in our system, the importance of fairness and the desire of each juror to experience fairness him or herself. It is important to identify a value or emotionally held idea that is as powerful as the jurors’ bias, in order to counter their bias. In addition, ensure jurors commit to using facts and evidence to make their decision rather than stereotypes and feelings. Emphasize their belief and value in the legal system and belief in equality that is embedded in our system. Use jurors’ nationalistic feelings for the client. Affirm commitment to the process so when jurors are in deliberations and any juror diverges from the facts and relies on bias or prejudice; others are able to override that tendency with a more powerful value.
Frame Your Position In Opening Statement and Closing Argument
Set the framework for the trial. If the case is based on discrimination the strategy may include a more direct appeal to religion and/or national origin. When the situation is more oblique and the claims are not related to bias it may be important to be more implicit when addressing jurors because too much emphasis on religion/ethnicity may cause the jurors to unnecessarily pay negative attention to the plaintiff or defendant’s character.
Encourage incremental changes to jurors’ views by repeating information that is inconsistent with their stereotypical viewpoint. If your client is actually Christian, tactically mention that she attends Church. If the client is Muslim and has grown-up and attended college in America, talk about his fraternity experience. Find similarities between the jurors and client. Putting them together in time or space will help.
Present argument in your closing that challenges jurors’ assumptions. Recall people to their own experiences to interrupt biases. Be aware of who is on your jury and their experiences. Carefully remind the jury of their experiences of discrimination; the history of Anti-Semitism for example. Ask them to trust in the justice system and law rather than stereotypes and presumptions about who your client may be.
Humanize your client and bridge the social distance. If your trial is related to Islam, subtly educate the jury about Islam in your opening. Explain how Islam goes hand in hand with the principles of democracy, that women in Islam had voting rights over a century ago and more broadly how the principles of Islam are based on education, peace and tolerance.
Prepare Your Witnesses Carefully
Witness preparation is extremely important. Demonstrate similarities, especially if the plaintiff/defendant has outwardly expressed any such as changing his name to John from Jahn. Use pieces of information to which jurors can relate. For example, if the plaintiff or defendant is a father, talk about his experience as a parent. Plant pieces of information with the jury that may help them contradict the negative affect so they can alleviate any fears and bias feelings.
In order to bridge the social distance, make connections with the jury by illustrating similarities. Find characteristics that take away from the stereotype and emphasize the similarities.
Create an image that illustrates integration. This means, the witness should try and wear clothes that deemphasize the stereotype and speak clearly, et cetera. With most Americans not having even met a Muslim, jurors’ initial feelings about your client will come from the first impression that your client makes. Clothes, demeanor, accent and other immediately visible characteristics that fulfill the stereotype will push them into the out-group and create or affirm a social distance that will not serve your case. Minimize the social distance jurors feel between themselves and your client so that they do not immediately see your client as a member of an “out-group” who does not deserve the same fair treatment and consideration as other citizens or residents.
In cases involving Middle-Eastern or Muslim plaintiffs or defendants, there may be potential jurors of the same culture or ethnicity who dislike their national origin. This could be seen as ethnic self-hatred, where ethnicities such as Arab-Americans dislike their own culture or the cultural baggage or dislike those who they perceive as not having integrated into American society. Therefore, a Muslim name may be misleading for a lawyer who believes Muslims or Middle Eastern jurors would serve his Muslim client best.
It is important to not fall into the trap of you stereotyping the client because many of the stereotypes such as male dominance within Arab families can be incorrect. Many Arab families are matriarchal in many respects. Also, with first, second and third plus generations in America the Arab culture is ever evolving. Family dynamics are different for each family and are not necessarily what is portrayed as the cultural norm. Middle-Eastern culture is much more complex than the simplistic labels and views portrayed through ethnocentric and media interpretation of Muslims and Arabs. These complexities and how to decipher them for witness preparation; jury selection or trial strategy is useful in helping the jury relate to your client and preparing your client for trial.
Muslim-bias in the courtroom is a complex topic and deserves more attention because of the struggle for people who are perceived as Middle Eastern or Muslim to be received by an unbiased jury in the current climate. Going to trial with a Muslim client involves a multi-faceted perspective to discrimination that includes a cultural awareness and an informed approach that is sensitive to the possibilities and pitfalls of selecting potential jurors and developing trial strategy.
Naveen Khan is an associate consultant at Trial Behavior Consulting in the company’s Los Angeles office. Trained in social science and law, Naveen has experience with mock trial research, jury selection, developing and conducting post trial interviews and shadow jury research, in a wide range of high stakes civil and criminal cases in venues across the country. Read more about Ms. Khan at Trial Behavior's website.
Authors Note: Ms. Khan thanks her colleague Sarah Murray, for reviewing and commenting on this article.