Access to Justice and the unique experience of the deaf community

Issue November 2014 November 2014 By Sarah E. Worley, Sharon Applegate and Kendra Timko-Hochkeppel

We enjoy a proud history in the commonwealth of Massachusetts of accurately identifying and swiftly addressing areas in which our legal services can better serve our citizens. In the aftermath of the Boston Marathon bombings, the leadership of the Massachusetts and Boston Bar Associations coordinated efforts to provide the highest level of legal services on a volunteer basis to victims of the attacks who suffered personal injury, property damage, and business disruption.  Beyond the initial damage assessment, MBA President Douglas K. Sheff founded the Traumatic Brain Injury (TBI) Task Force "to educate the public, and to overcome bias which often accompanies an ailment that you can't see, that people aren't familiar with." In focusing attention on the struggles faced by individuals suffering from TBI, hearing loss and tympanic injury following the bombings, Sheff also shed light on a larger issue in the administration of justice: The unique challenges faced by deaf individuals in our court system.

Equal access to services and institutions is a civil and human right. Deaf citizens are denied that right on a daily basis simply because too few people in this country can communicate in American Sign Language (ASL). That barrier to adequate communication creates circumstances that we would not otherwise tolerate. For instance, all hospitals in the Boston area prominently post lists of language interpreters available upon request to assist patients. While ASL interpreters are featured on those lists, it can take days to locate one for hospital work. Consequently, hospital personnel routinely fall back on asking an accompanying friend or family member to act as an interpreter. In a time when HIPAA regulations are meticulously enforced, often to the frustration of litigants and medical providers, those same regulations are cast aside in favor of expediency when hospital staff encounter a deaf patient.

Similarly, deaf individuals know that even to consult with an attorney is a complicated process, often involving negotiation from the outset with respect to the use of interpreters. With only six interpreters currently certified in the commonwealth to perform legal interpretation - and a six-month wait to schedule them - it is a given that an interpreter retained for an initial office consultation with an attorney will not be certified as a legal interpreter. Much like the hospital setting, the temptation for both deaf client and hopeful lawyer, for the sake of efficiency, is to rely on the assistance of a family member or friend to facilitate communication. In so doing, both client and counsel cast aside the protections of attorney-client privilege that otherwise they hold so dear.

In a glaring, but not unusual, example of the frustrations endured by litigants and the courts themselves, in September, Judge Robert Fournier of Ottowa stopped just short of staying all charges against a deaf man being held in Ottowa after what he called "outrageous" delays in locating a sign language interpreter to facilitate the court proceedings.

In striving for equal access to our justice system for the deaf community, the challenges posed are real, but not insurmountable. We are fortunate to live in close proximity to Northeastern University, which boasts one of the best ASL interpreter programs in the world. Its faculty and students contribute immeasurably to the deaf community as allies and advocates. Beyond their efforts, however, we recognize a need for fundamental communication skills and, through an aggressive American Sign Language expansion campaign launched by the Allston-based nonprofit DEAF Inc., we intend to increase exponentially the number of people who can communicate through basic ASL by offering classes to public safety personnel, teachers, lawmakers, medical, legal and financial professionals, and others who work with deaf community members. This effort will improve access to judicial services and will enhance dramatically the ability of lawyers, judges, court personnel and others connected with the courts to communicate with deaf individuals.

DEAF Inc. looks forward to an exciting and mutually-beneficial collaboration with the legal community as we all work together to build a bridge between deaf consumers and our system of justice.