August 01, 2013

Litigating Sexual Abuse Cases for Deaf Children

Christina Rainville

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Deaf children are far more likely to be sexually abused than their hearing peers. Studies report the risk of sexual abuse is two-to-three times greater for deaf children.1 In one study, 50% of deaf female students and 54% of deaf male students reported that they were sexually abused as children.2 Given these disturbing statistics, it is important that lawyers be proficient at prosecuting sexual assault cases for deaf children. While these cases pose challenges, the only way to protect these children is to prosecute their cases.

Litigating cases for deaf children requires a conceptual understanding of Deaf culture and deaf language, and the willingness to work with interpreters. While this may seem overwhelming at first, the challenges can be overcome. 

Trying Cases for Deaf Children

Judge John Wesley, a highly regarded superior court judge in Vermont, had been on the bench for 10 years when a sexual assault case involving a deaf child landed on his trial docket. Wesley had handled simple matters with deaf interpreters before, like arraignments or civil hearings, but this was different. The child victim was deaf; her parents were deaf; the defendant was deaf; the assaults happened at a school for the deaf; and most witnesses at the trial were deaf. The entire trial had to be conducted through interpreters.

Fortunately for Wesley, all of the witnesses were fluent in American Sign Language (ASL). Often these cases can be even more complicated when witnesses (especially young children who have not yet become fluent in sign language) require other means of communication.

Communication Types

Sign language

ASL is the prevailing language of the Deaf community in the United States and English-speaking parts of Canada. ASL is a complex and unique language that, like all living languages, changes over time. ASL combines hand signals, facial gestures, and body postures.3

Because ASL is one of many sign languages used by deaf people, one of the first steps is to determine which sign language the witness uses. If the child in the case is an immigrant or foreign-speaking child, the child may use a sign language other than ASL (see box for details of other sign languages). 

Other communication types

Very young children and some deaf adults do not know ASL at all. They may communicate with a series of gestures, props, signs used in their home, and signs used in their community. They may also communicate through Manually Coded English (MCE) (can include finger spelling)4 or Pidgin Sign English (PSE)5, which includes a mix of ASL and English grammar. As detailed in the box below, there are special interpreters who are deaf and expert in interpreting non-ASL deaf communication.

Speech reading. Many deaf people, including children, are proficient speech readers (formerly called “lip reading”). Much speech is not visible and the best speech readers pick up about 30% of the words.6 It may be appropriate to rely on a child’s speech-reading abilities to have a casual conversation, but one should never rely on speech reading when the content of the conversation is important.

Reading and writing. Depending on the age and education level, a deaf child may be proficient at reading and writing. However, it is generally not comfortable or feasible to have a conversation by writing answers. Writing answers is time-consuming and tedious. If a child is fluent in sign language, making the child write responses also can be demeaning.

Speaking. Many deaf children and adults can speak; some can speak very well. This can obviously help facilitate communication between the prosecutor and the child, but interpreters are still required.

Role of Court Interpreters

In Judge Wesley’s trial, there were two “court” interpreters who interpreted the testimony: a primary interpreter, and a backup for when the primary interpreter needed a break. Because sign language is physical and requires constant facial and body movements, it can be exhausting and ASL speakers and interpreters require regular long breaks. 

In addition, the defense had an interpreter to enable the defendant to communicate with his counsel, and the state had an interpreter to facilitate communications with witnesses. Because the state and defense interpreters were not interpreting on a non-stop basis, they did not require backup interpreters to relieve them. Nonetheless, at all times, there were four interpreters in the courtroom. All of the witnesses were fluent in ASL, so additional interpreters were not required.

Know that interpreting testimony is complex.

According to Judge Wesley, the court interpreters played a crucial role in helping him, as a judge, get through the trial. Indeed, even before the trial began, the interpreters asked to speak to Wesley to explain what the trial process would be like. They explained that ASL, like all languages, has nuances and that there would likely be disagreements over interpretation. The two court interpreters, if an issue were to arise, would consult with each other to see if they could agree. If not, they would ask Wesley to ask the parties to rephrase the question, or for the witness to clarify an answer. In addition to interpreting the testimony for the jury, the court interpreters also explained any objections and Wesley’s rulings to the witnesses.

According to Wesley, during the trial, there were times when the court interpreters consulted with each other and asked for clarifying questions or responses, and there were also times when the defense or prosecution interpreters disagreed with the interpretation offered by the court interpreters. In those instances, if a clarifying answer or response did not resolve the dispute, Wesley directed that the interpretation by the court interpreters would control.

The interpreters also explained that they would adjust their tone of voice, as accurately as possible, to reflect the tone of the ASL communication, and they did so throughout the trial. 

Give special jury instructions. 

Prior to the start of the trial, the court interpreters also asked Judge Wesley to give a special instruction to warn the jurors that body language and facial expressions are different in Deaf culture, and that the jury should not make assumptions about facial expressions and body language based on the culture of people who hear. Body language and facial expressions are communication tools in ASL, and may have different meanings than the jurors might assume.

It is easy to see how a hearing juror could easily misinterpret an ASL speaker’s body language and facial expressions. As just one example, in spoken English, we ask questions by raising our voice at the end of a sentence. In contrast, in ASL, “users ask a question by raising their eyebrows, widening their eyes, and tilting their bodies forward.”7 Once the interpreters addressed the issue about how hearing jurors were likely to misinterpret the body and facial expressions of the witnesses, it was clear that a special instruction to the jury was required, and Judge Wesley gave the instruction that the interpreters recommended.

Get used to a different pace.

According to Judge Wesley, when the trial started, there was “a difference in pace that you have to adjust to,” and the first day was very hard, “probably especially for the jury.” But, after the first day, everyone became comfortable with the rhythm. 

Expect the unexpected.

Even with this carefully-orchestrated structure, there were surprises. At one point in the middle of the victim’s testimony, Judge Wesley witnessed what appeared to be a private conversation between the victim and the court interpreter. After there had been more back-and-forth than seemed appropriate, Wesley called the court interpreters to the bench to ask what was going on. The interpreter explained that the victim was upset because someone in the audience was signing, “you are a liar.” The other interpreters confirmed that they had seen it as well.

Wesley sent the jury out, and, with the use of the court interpreters, addressed the audience in the courtroom. He told the audience that attempting to communicate with a witness was an act of contempt, and that, “if an onlooker were speaking in loud tones, we would exclude them from the courtroom and possibly take other legal action, and this is no different.” There were no problems with the audience after that warning.

Present evidence fairly.

Judge Wesley’s goal was that the trial would have to be as close as possible to what “it would be if you did not have disabled people.” According to Wesley, while the jury may not have been able to determine credibility by analyzing the body language and facial expressions of the witnesses, there were many other ways to determine witness credibility, including the consistency of the testimony, witness motives, and the overall coherence of the evidence. The trial took about a third longer because of the interpreters, but, in the end, Wesley felt that the jury heard a fair presentation of the evidence.8

Preparing for Trial

A lawyer must take many steps before any case is ready for trial. Cases involving deaf children require that the lawyer be up-to-speed on Deaf culture and the child’s means of communication.

Understand Deaf culture.

The first step in preparing a case for a deaf child is to get a basic understanding of Deaf culture. A good place to start is the website for the National Association for the Deaf (NAD).. There, you will learn that “deaf” with a small “d” has a different cultural meaning than “Deaf” with a capital “D.” “Deaf” with a capital “D” connotes a person who is deaf who uses sign language as the primary source of communication, and is a member of the larger Deaf community. Deaf with a small “d” refers to the condition of not being able to hear. 

Avoid offensive terms.

Deaf culture is unique, and lawyers must respect the culture. For example, terms like “deaf and dumb” and “deaf-mute” are generally considered offensive. “Deaf and dumb” is based on the medieval concept that Deaf people were uneducable; and “deaf-mute” is based on the 18th and 19th century concept that Deaf people are silent.9 The term “hearing impaired” is also considered offensive, as it suggests the hearing is less than it should be.10 Many Deaf people do not consider themselves “disabled,” but rather, proudly consider themselves members of a special culture where everyone speaks their language. 

As NAD explains on its website, “What’s in a name? Plenty. Words and labels can have a profound effect on people. Show your respect for people by refusing to use outdated or offensive terms. When in doubt, ask the individual how they identify themselves.”11

Using Interpreters

Regardless of a person’s speaking or speech-reading ability, the only way for a hearing person to have a reliable conversation with a deaf person is to use professional interpreters. Federal law requires that interpreters be provided at no cost to the deaf person. For court proceedings, the court system will pay for interpreters; however, for meetings with the lawyer, the costs will come from the office budget or other state fund. Under the Americans with Disabilities Act, a lawyer must provide accommodations to ensure any person with a disability has equal access. Interpreters are the required accommodation for deaf people.12

Seek out certified interpreters.

The first step in obtaining an interpreter is to find out what language the child uses. Does the child use ASL? Pidgin Sign? Some other sign language? Or is the child too young to know any formal sign language? Once you know the language, the next step is to get certified interpreters.

Interpreters for the deaf are certified through the Registry of Interpreters for the Deaf (“RID”), which requires exacting standards for six different certifications, each with education, training, and testing requirements.13 There are different certifications for interpreters who can hear and those who are deaf or hard of hearing. Hearing and deaf interpreters are both essential and serve different roles.

Choose an appropriate interpreter.

The type of interpreter required depends on two factors: the child’s ability to communicate in ASL (or other sign language) and the setting (such as court, depositions, or informal meetings).

Ability to communicate. The child’s ability to communicate in ASL or another sign language will determine whether two interpreters are required. If the child is not fluent in ASL or some other sign language, you will need two interpreters in all settings: (1) a deaf interpreter who can translate the child’s efforts at communication into ASL, and (2) an ASL interpreter who can interpret the deaf interpreter’s ASL into spoken English.

Using two interpreters is cumbersome. The lawyer asks a question; the ASL interpreter signs it to the CDI, who, in turn, signs to the deaf child. The deaf child communicates to the CDI, who then signs to the ASL interpreter, who speaks the child’s answer. There are four steps between every question and every answer. The process is slow, and it is often difficult to maintain a train of thought let alone a conversation. And, as challenging as it is for the lawyer, it may be far more challenging and frustrating for the child.

Setting. If the child is fluent in ASL, it may suffice to have an ASL interpreter, depending on the setting, such as: 

  • A simple meeting about the status of the case, or checking in after a court hearing to let the child know what happened in court;
  • Court hearings where the child does not testify but attends to watch what happens, where an ASL interpreter can sign the proceeding to the child (or deaf parent) (preferably an interpreter who holds a legal certificate or is familiar with legal terms).

In contrast, a CDI and ASL interpreter are always required for a forensic interview of a deaf child, because, among other things, deaf children are much more comfortable communicating with a deaf person.

For court testimony by the deaf child, the court will hire ASL interpreters who hold legal certificates, and the prosecutor will have to consider carefully whether both a CDI and an ASL interpreter are required. As discussed, having two interpreters is extremely cumbersome and difficult; however, having a child on the stand who is unable to communicate with the ASL interpreter is not an option. Deciding whether to use a CDI in addition to an ASL interpreter should occur after consulting the child’s caregivers and the child. 

Request accommodations.

If the lawyer decides to use both a CDI and an ASL interpreter, it might be appropriate to request additional courtroom accommodations. 

  • Leading questions: Some courts have allowed leading questions on direct examination of deaf individuals because of the difficulties and delays that happen with interpreters.14
  • Video testimony: There is no reason why a deaf child cannot testify by video outside the courtroom, if necessary, to avoid contact with the defendant. The interpreter(s) can be in the room with the child, or the interpreter(s) can be in the courtroom and communicate with the child by video relay. 

Preparing for the First Meeting with a Deaf Child

Once the lawyer is familiar with the basic interpreter issues, the next step is to prepare for the first meeting with the child. Like all children in sexual assault cases, a deaf child will likely have a lot of anxiety and concerns about the meeting. In addition, a deaf child may feel an inherent sense of distrust, and it is especially important to put the child at ease from the start. 

After the lawyer identifies him or herself, the next step is to start the meetings by discussing the means of communication and putting the child in charge. For example, the lawyer might explain that an interpreter is being used “because it is very important to completely understand what you have to say.” The lawyer could then ask the child whether the interpretation process is comfortable and okay. Children who live completely within Deaf culture may not have had many opportunities to speak to someone who does not understand sign language. If the child seems frustrated that the process is slow, the lawyer could apologize and take responsibility for needing an interpreter.

Put yourself in the client’s shoes.

The lawyer must think about what it must be like for the child. A good comparison is what it would be like for a child to meet with a lawyer over a sexual assault in a foreign country where the child does not know the language. Any child or parent who meets with a lawyer in their native language has anxiety about the meeting, but for deaf children and their deaf parents, the anxiety can be even more complex. 

  • Will they be understood? 
  • Will the interpreter be accurate? 
  • What if the interpreter is no good? 
  • Will the child be taken away from the parents?

Because communication concerns heighten the child’s (and parent’s) anxieties, it may be best to have a deaf CDI interpreter at the first meeting, regardless of the child’s ASL abilities, to allay the child’s fears of not being understood.

Get the child’s IEP.

Before the first meeting, the lawyer will need the child’s Individualized Educational Plan (“IEP”) from the child’s school. This document is important because it describes how the child communicates, whether the child requires accommodations in school for disabilities other than deafness, and whether the child is performing at grade level. 

People often wrongly assume that someone who cannot speak is not intelligent. Such assumptions are hurtful and can destroy the lawyer’s rapport with the child. The lawyer should use the IEP to determine the child’s intellectual functioning, and then address the child appropriately during the meeting.

Deaf parents are also sensitive to being treated as though they are unintelligent because they are deaf. When working with a deaf parent of a deaf child, be respectful and try to engage the parent in any decision that involves the child. 

A good way to establish rapport in these meetings is to talk about how smart the child is, and, if appropriate, how well the child is doing in school. A lawyer might start by saying something like, “I saw your school records and I know you are really smart, so if you have any questions about this process as we go along, please just ask.”

Arrange for interpreter(s).

Interpreters can be hard to find. In Southern Vermont, we have no local certified interpreters, so our interpreters travel from neighboring states. Interpreting services must be arranged in advance.

Check interpreter referral sources, such as the RID website.15 Many state governments offer referral information as well, such as the Vermont Interpreter Referral Service.16 It is also possible to arrange for interpreters by video relay, where the interpreter communicates by live video over the Internet.17

Provide rest periods.

As discussed above, because ASL and other sign languages require physical movements, communicating can be physically exhausting for the interpreter and for the child. The lawyer should look for signs of fatigue with the child during meetings, and suggest breaks when necessary. 

When hiring an interpreter for meetings, the lawyer should find out what the interpreter’s needs are for breaks and overall time limits. For trial, courts are usually responsible for hiring interpreters for witnesses, and the lawyer should find out in advance what kinds of breaks the interpreter will require.

For the deaf child witness, the lawyer should advise the court of the need for breaks and time limits before the trial rather than taking the “wait and see” approach with the child on the stand. A child’s ability to communicate accurately will decline significantly if the child is tired. The child, and the child’s caregiver, will be helpful in determining what the limits should be. The lawyer might also ask the trial judge for a jury instruction to explain why so many breaks are needed.

Changing interpreters during the court process

Interpreters may be subject to claims that they cannot be unbiased if they interpret at more than one phase of the trial process. The interpreters who serve during the forensic interview should have no further involvement in the case. New interpreters should handle meetings between the child and the legal team, and yet another team of interpreters should be used at trial.

Conclusion

There will always be challenges to litigating a case where the victim is deaf. Keep in mind, a deaf child who has been sexually abused is just as likely as any other abused child to develop post-traumatic stress disorder or other physiological and emotional complications from trauma. Nonetheless, the challenges can be managed. Given the disturbing statistics showing how many deaf children are sexually abused, it is imperative that lawyers commit to learning how to prosecute these cases, and to pursue them through trial regardless of the difficulties.

Christina Rainville, JD, is the Chief Deputy State’s Attorney for Bennington County, Vermont, where she heads the Special Investigations Unit. She is also a former recipient of the ABA’s Pro Bono Publico Award.

Understanding Interpreter Certifications

There are a number of different certifications for interpreters. It is important to know what kind of certification is required in a given situation.

Certifications for interpreters who can hear:1

 NIC (National Interpreter Certificate) is the standard interpreter certification for interpreters who can hear; NIC certification requires a bachelor’s degree and proven interpreting skills;

OTC (Oral Transliteration Certificate) is a certificate for a hearing person who can transliterate the spoken word from a person who hears to a person who is deaf or hard-of-hearing; OTC certification requires an associate’s degree and proven sills;

SC:L (Specialist Certificate: Legal) is the certificate for a hearing person with highly specialized knowledge of legal interpreting in legal settings, such as court.; SC:L certification requires a minimum of an associate’s degree and proven skills;

Ed:K-12 (Educational Certificate: K-12) is the certificate for a hearing interpreter who can receptively interpret student or teen sign language in ASL, Pidgin Sign English and Manually Coded English. These hearing interpreters can interpret voice-to-sign and sign-to-voice in a classroom setting; Ed:k-12 certification requires a bachelor’s degree and proven interpretation skills.

Certifications for interpreters who are deaf or hard of hearing:

CDI (Certified Deaf Interpreter) is the certificate for a deaf or hard-of-hearing person who is proficient at interpreting a deaf person’s non-ASL communication to someone who communicates with ASL.

CLIP-R (Conditional Legal Interpreting Permit-Relay) is the certificate for a deaf or hard-of-hearing person who is certified as a CDI interpreter and transliterator, who also has obtained an additional certificate to work in legal settings, such as court and depositions.

1The different certifications offered by RID are discussed in greater detail on the RID website at www.rid.org/education/testing/index.cfm.

Sign Languages for the Deaf

Sign languages for the deaf developed across the globe over the last two centuries. There are hundreds of sign languages used by deaf speakers throughout the world,1 and the languages bear little (if any) relation to the languages spoken in that region.2 

  • ASL is not English, and is most similar to the French Sign Language used in France. 
  • There is also a Quebec Sign Language used in Quebec. 
  • British Sign Language is used in Britain, and it is unintelligible to ASL users. 
  • Mexico, Puerto Rico and Spain each have distinct sign languages, all of which are unintelligible to ASL users and to each other.

Within sign languages, there are dialects and “accents.” 

  • Black Sign Language, which is often used by African Americans, has many cultural words in addition to the words in ASL, and it is also distinct in the way words are signed.3 
  • Among ASL users, people in the southern part of the United States sign much slower than people in the north. 

1 Galludet University has an online list of distinct sign languages used around the globe: http://libguides.gallaudet.edu/content.php?pid=114804&sid=991920

2 A description of the development and unique nature of sign languages can be found here: http://en.wikipedia.org/wiki/Sign_language.

3 See, e.g., “Sign language that African Americans use is different from that of whites,” The Washington Post, September `7, 2012, available here: http://articles.washingtonpost.com/2012-09-17/lifestyle/35498000_1_white-students-black-students-new-signs.

Endnotes

1. Kvam, Marit Hoem. “Sexual Abuse of Deaf Children. A Retrospective Analysis of the Prevalence and Characteristics of Childhood Sexual Abuse among Deaf Adults in Norway. Child Abuse & Neglect 28(3), March 2004, 241-251.

2. The National Child Traumatic Stress Network website at www.nctsnet.org/nctsn_assets/pdfs/edu_materials/Trauma_Deaf_Hard-of-Hearing_Children.pdf, citing Sullivan, P.M., Vernon, M. & Scanlan, L.  “Sexual Abuse of Deaf Youth.” Annals of the Deaf 32(4), 1987, 256-262.

3. National Institute on Deafness and Other Communication Disorders website, www.nidcd.nih.gov/health/hearing/pages/asl.aspx.

4. MCE is described on the Center for Disease Control and Prevention website, www.cdc.gov/ncbddd/hearingloss/parentsguide/building/manual-english.html.

5. PSE is described here: http://www.nchearingloss.org/pse.htm.

6. One study showing that proficient lip readers pick up only 32% is discussed here: www.disabled-world.com/disability/types/hearing/communication/lip-reading.php.

7. See www.nidcd.nih.gov/health/hearing/pages/asl.aspx.

8. The jury convicted, but the case was reversed on appeal for unrelated reasons. See State v. Rehkop, 180 Vt. 228 (2006).

9. www.nad.org/issues/american-sign-language/community-and-culture-faq.

10. Ibid.

11. Ibid.

12. Indeed, the Justice Department has pursued civil lawyers and law firms that refused to provide interpreters for their clients, and has required them to pay damages to the deaf clients. See discussion on the NAD website at www.nad.org/issues/justice/lawyers-and-legal-services/communication-access-funds.

13. www.rid.org/education/testing/index.cfm.

14. See, e.g., State v. Rogers, 361 S.C. 178 (S.C. App. 2004) (affirming use of leading questions on direct examination of deaf victim in sexual assault case); Denton v. State, 945 S.W. 2d 793 (Tenn. Cr. App. 1996)(noting that it was “usual and proper” to grant “greater leeway in allowing leading questions” for deaf witness using interpreters in aggravated rape case).

15. www.rid.org/acct-app/index.cfm?action=search.members.

16. www.virs.org/About/about.html.

17. Many companies advertise this service on the Internet.