Volume 1 ~ November 2009
ISSN # 2150-5772 – This article is the intellectual property of the authors and CIT. If you wish to use this article in your teaching or in another format, please credit the authors and the CIT International Journal of Interpreter Education.
Carla M. Mathers
Hyattsville, Maryland, USA
Statement of the problem
While the use of deaf interpreters has received much lip service in the short history of the signed language interpreting profession, deaf interpreters are generally under-utilized and reserved for a small segment of the population who present unique linguistic qualities that interpreters who can hear struggle to understand. The proposition outlined here recommends using deaf interpreters in a relay capacity between deaf consumers and hearing signed language interpreters in a wider range of settings, tailoring certain areas of interpreter preparation curriculum to the tasks performed by deaf interpreters and engendering support for hiring deaf interpreters from pre-existing legal interpreting statutes as enacted in the United States.
Deaf interpreters provide a reasonable resolution to both the declared shortage of interpreters caused, at least in the United States, by the drain of talent to the video-interpreting industry and to the documented lack of skill demonstrated by many interpreters who can hear (Wahid v. Long Island R. Co., 2007; United States Department of Labor, 2009; Taylor, 1993). A deaf interpreter paired with an interpreter who can hear is a reasonable accommodation in any setting in which a signed language interpreter is required. Typically, when a fully qualified interpreter cannot be located for an assignment, hiring authorities resort to any available interpreter, whether or not they have the skills to do the assignment. Deaf interpreters supply an important ingredient to the interpreting team. They can provide the linguistic skills in sign language that the interpreter who can hear may not yet possess. As a result, a deaf interpreter coupled with an interpreter who can hear serving in an ancillary or supporting role is an accommodation that can be considered in a wide range of interpreting assignments, such as educational, medical, performing arts, legal and business settings (Keller, 2008; Forestal, 2005; People v. Vandiver, 1984).
Preparation programs need more research-based curriculum
Obviously, the proposition that deaf interpreters should be used in a wider array of interpreting assignments faces an immediate barrier to implementation because most interpreter education programs are ill-equipped to admit deaf students. Curricula cannot be adapted to teach deaf interpreters until those essential tasks have been identified and are supported by a solid foundation in research. Cokely has suggested that “there is much about the work of our Deaf colleagues that we do not yet understand and that they may not be able to fully articulate” and without this understanding it may not be possible “to assess and certify competence in the absence of such fundamental research” (2005, p. 20). Deaf scholars, likewise, have called for a principled approach to research and curriculum development, focusing on the interpreting process as used by deaf interpreters (Forestal, 2005).
There is some support in the literature for delineating certain knowledge and skill areas and instructing deaf interpreters separately from their peers who can hear (Boudreault, 2005; Cokely, 2005; Forestal, 2005). Boudreault suggests that in certain courses deaf and non-deaf interpreting students could be integrated, such as “American Sign Language (ASL) linguistics, theory of interpreting, deaf culture, whereas other courses would need to be offered separately, such as those developing International Sign skills, alternative communication for individuals who are semilingual or without language, Deaf-blind interpreting, [and] mirroring ….” (Boudreault, 2005, p.351). Further, it has been suggested that because deaf interpreters in the interpreting unit are at the same time both consumers and practitioners of interpreting during the assignment because they receive an interpreted message as their source language from their teammate who can hear in a relay-type process; a separate discussion regarding this issue may be merited (Keller, 2008).
Both Keller (2008) and Forestal’s (2005) work suggests that this frame of consumer of interpreting services, generally, and as part of the interpreting unit, needs to be explored more fully to understand the deaf interpreting process. Most interpreters would agree that when interpreting for a deaf consumer, it is the consumer who should be in control of the communicative event and should lead the interaction. The concept of “deaf interpreter as consumer” supports the proposition that the deaf interpreter functions as the lead interpreter in the deaf-hearing team. Some case law in the United States even suggests that interpreters who can hear serve in a supportive function to the deaf interpreter, who functions as the court’s interpreter (People v. Vandiver, 1985). Interpreters are accustomed to subordinating their person to the desires of the consumers of interpreting services. In the Deaf Interpreting Model proposed in this paper, both the ultimate consumer and the deaf interpreter are recipients of interpreting services in the interaction. Logically, then, the deaf consumer should be in charge of the communicative event, and the deaf interpreter, as consumer and practitioner, should lead the interpreting unit.
In response to calls for a solid empirical foundation, interpreter educators have begun to implement coursework tailored to the unique skills and attributes that deaf interpreters bring to the interpreting assignment and to report on these focused activities (Keller, 2008). A number of important recommendations for modifying course structure and content specifically for deaf interpreting students include adapting Dean and Pollard’s Demand-Control Schema (DC-S; 2001) 1 to address issues raised when a deaf interpreter is working: providing supervision for working deaf interpreters, creating case-conferencing techniques for pre- and post-assignment analysis, using DC-S to address the specific linguistic demands prompting specific controls when working with deaf interpreters who may present unique linguistic characteristics, structuring opportunities for observation, and implementing on-site practicum and mentorship opportunities (Keller).
Likewise, Forestal’s (2005) qualitative research presented a number of knowledge and skill areas to be addressed in the core curriculum for deaf interpreters, including: native language skills; linguistic and cultural knowledge of ASL and English; sensitivity to and understanding of other cultures; interpretation skills, including an emphasis on the consecutive nature of the work; interpersonal skills; attitudinally-appropriate skills; cultural mediation skills; expansion skills; gestural skills; the ability to incorporate props and environment into the interpreting process; respect for the interpreting field; and interpreting in general. Finally, Boudreault (2005) suggested a series of competency areas for which instruction should be incorporated into the curriculum for training deaf interpreters, including courses focusing on interpreting in International Sign, for deaf-blind individuals, and for individuals without formal language, as well as courses on the role and tasks of the deaf interpreter, including ethical and protocol modifications that may need to be made when providing interpreting through a deaf-hearing team. These knowledge and skill areas apply to teaching deaf interpreters in interpreter preparation programs; however, deaf interpreters have traditionally been used in the legal settings. While the suggestion here is that deaf interpreters can be used in any setting, particularly to increase the availability of interpreting services where qualified interpreters who can hear are unavailable, it is fruitful to look at the challenges posed to deaf and hearing interpreters in the legal setting.
Deaf interpreters increase the availability of high quality interpreting services
Evidence suggests that many ASL interpreters who can hear are not fully bilingual, which impedes their ability to interpret accurately (Taylor, 1993). Evidence also suggests that deaf interpreters can be more effective than non-deaf interpreters, which has been discussed in legal cases where deaf litigants were able to ask intelligent questions and participate in the defense of a case with a deaf interpreter and were unable to do so without a deaf interpreter (People v. Vandiver, 1984). Evidence suggests that interpreters, at least in the United States, do not actively seek to specialize in legal interpreting. In a national survey of 4,000 interpreters, only 23% indicated that they worked at all in legal settings (Mathers, 2009). Of those 23% only 5% specialized in legal settings. However, of the 23% who did some legal work, nearly half of them worked with deaf interpreters 75% of the time. Although the numbers are low, it is interesting that nearly half of those who work in legal settings see the value in working with deaf interpreters and do so three-quarters of the time. Hence, the dearth of interpreters working in legal settings is an area that can be remedied, in part, by the implementation of a model of consistently staffing legal assignments with qualified deaf-hearing interpreting teams.
Some competency requirements for legal interpreters
In the legal system, the competencies required for effective spoken language interpreting have been well described. Those competencies include “high-level proficiencies in the source and target languages and cultures, including knowledge of geographic variation, an understanding of the legal process and related terminology, the ability to manipulate the various discourse styles used in the courtroom, along with interpreting skills and adherence to standards of ethics and professional conduct [which are] essential in protecting a non-English speaker’s right to due process” (de Jongh, 2008, p.21). In the legal system, it is also well recognized that the English used is specialized and difficult for the untrained to understand. Legal English presents difficult barriers for interpreters, both deaf and non-deaf, to surmount in providing quality legal interpreting services.
The legal system uses the language of the majority—whether written or oral—to conduct business. Authors have suggested that those who lack a strong and studied basis in legal English will struggle (Ainsworth, 2008). Interpreters with little exposure to court interpreting and the deaf population can be considered legally naïve speakers who are unfamiliar with the scripts necessary to obtain certain objectives in the legal system (Ainsworth, cited in Mathers, 2009, p. 2). For one to become comfortable with the majority language, as used in the legal system, takes years of intensive study. Once fluent in the spoken language used in court and legal settings, the interpreter is only marginally prepared to actually interpret. As has been discussed, many interpreters are not fluent in sign language, and are not likely to be able to produce sign language in a manner that would be semantically and pragmatically equivalent to the language as used in legal settings. Deaf interpreters can remedy this problem.
A proposed division of duties
Legal interpreting blends a number of high-level skills that apply equally to deaf and hearing interpreters. The problem is that becoming proficient in each area requires years of intensive work. When a deaf-hearing interpreting team is used, each interpreter may not be at the same developmental level in the various competency areas. The deaf interpreter may have more skill in language and cultural knowledge, whereas the non-deaf interpreter may have a more thorough understanding of the language of the court and its culture, politics and protocol. For some areas, such as knowledge and understanding of the standards of professional conduct and court interpreter ethics, it is reasonable to expect that both interpreters have the same level of proficiency prior to interpreting in a legal setting. For other areas, however, the various tasks required of the “complete” legal interpreter can be apportioned to the interpreter in the best position to be able to master the task in the most efficient manner. During the interpreting process, the non-deaf interpreter can attune to the spoken language, their primary language, while the deaf interpreter can focus on where their skills lie—in performing the actual and paramount interpretation to and from the deaf participant. In this way, deaf individuals can be ensured they are provided all the process that is due through the provision of a two-person interpreting team, with each individual having specialized skills. Ideally, the two interpreters would be equally fluent in all skill areas; however, as a practical matter, this division of duties provides a mechanism to permit the services to be delivered in the interim. Obviously, this suggestion has application outside of the legal setting to any setting in which there is a need for a more fluent interpreting team. It may also prove to be true that even when both interpreters are fully trained and experienced, this division of duties remains as a guide to each part of the team’s work.
A look at the population
Abundant evidence from the fields of social science and law suggests that a large number of deaf individuals can benefit from the use of a deaf-hearing interpreting team accommodation (Mathers, 2009). The research is not limited by the setting; in other words, deaf individuals may benefit from the deaf-hearing interpreting team approach in any setting in which they interact with individuals who can hear. The National Association of the Deaf (NAD), in an effort funded by the United States government, has issued a white paper (the NAD-RSA Report), describing the characteristics of a significant group of deaf people who have difficulty functioning in the mainstream. The NAD-RSA Report’s conclusions are supported by the results of a survey conducted by the Deaf Interpreters Work Team of the National Consortium of Interpreter Education Centers (NCIEC) 2, setting forth characteristics of individuals who could benefit from the use of a deaf-hearing interpreting team. The conclusions set forth by the NAD and the NCIEC are reflected in recommendations made by the Language Services Section of the New Jersey court administrator’s office in its series of guidelines (Language Services Section [LSS], 2004) advising the judiciary on the mechanics of working with deaf interpreters (Mathers, 2009). These three sources support the notion that a broader group of deaf people could benefit from the provision of a deaf interpreter than has traditionally been thought to be the case.
In addition to the presence of secondary cognitive disabilities that impair language skills, the reports suggest that characteristics such as being foreign born, lack of family support, substance abuse, discrimination, inappropriate education, residence in a rural or low-income urban area, limited socialization, or a bilingual home environment (without signing) are characteristics that indicate the need for a deaf interpreting team. This significantly expands the pool of individuals for whom a deaf-hearing interpreting team would be an appropriate accommodation. The expanded group consists not only of those with unique linguistic needs, but also those presenting complex social and experiential combinations, regional or dialectical variations, and weak majority language skills. Further, these reports were not limited to legal settings, 3 rather, they suggest that a deaf interpreter would benefit individuals exhibiting these characteristics in any setting in which they interact with majority group members.
Nevertheless, the legal setting is the venue in which the legal justification for providing deaf interpreters is strongest. It is the legal system in which deaf interpreters are retained most often and provides the most viable job market for deaf interpreters who graduate from preparation programs. It is worth taking a look, then, at the statutory system in place in the United States for arguing that this wider population should be provided with a deaf-hearing interpreting team accommodation in legal settings.
The United States’ statutory and common law provides a model
In the United States, individual states have recognized the need for deaf interpreters and have drafted statutes that include standards for determining when a deaf interpreter is indicated; individual courts have interpreted the statutory provisions on the use of a deaf-hearing interpreting team to provide guidance regarding the mechanics of using deaf interpreters. This commentary next examines the structure of the statutory provisions justifying deaf interpreters and concludes with recommendations for interpreter education programs to modify their approaches to provide more than cursory reference to the fact that deaf people can have a viable career as an interpreter..
Statutory schemes provide support for hiring deaf interpreters
In the United States, deaf interpreters have been retained primarily in legal settings and, to a lesser extent, in medical and mental health settings. An in-depth analysis of the United States’ individual state laws, federal law, case law, court rules and evidentiary rules demonstrates compelling justification for the provision of deaf interpreters in legal settings. It also presents a guideline for interpreter educators in instructing students on the protocols to use when a deaf interpreter is indicated.
Federal and state legal interpreting statutes and cases interpreting those statutes can be divided structurally into the following classifications (defined below): (a) traditional legal interpreting statutes, (b) deferral statutes, (c) credential-based statutes, (d) licensing statutes and (e) hybrid licensingstatutes. Each type can be used to support the argument that deaf interpreters are reasonable and viable accommodations, whether explicitly or implicitly. The statutes commonly include components such as (a) a listing of the settings and functions in which qualified interpreters are required, (b) a definition of the term qualified in respect to interpreting in legal settings, (c) a requirement that interpreters testify to explain their credentials, (d) a requirement that the interpreter be placed under oath to interpret accurately, and (e) a requirement that the court interview the deaf participant to determine, on the record, that the interpretation is satisfactory.
Some newer statutes require that qualified interpreters register with the state in order to practice in any setting, including legal settings. These licensing statutes tend to expressly include the Registered Interpreter for the Deaf’s (RID) Certificate of Interpreting for Deaf Interpreters (CDI) as the credential for interpreters. Traditional legal interpreting statutes tend to be older, and when they include credential-based terms, they use language such as “intermediary interpreter,” reflecting the language of the time the statute was written. Either in the section defining a qualified interpreter, or in a separate section defining a qualified deaf interpreter, traditional legal interpreting statutes typically provide a standard that tells the court when a deaf interpreter should be retained. Deferral statutes refer the decision regarding a qualified interpreter to an executive or administrative agency with specialization in deaf issues. A credential-based legal interpreting statute, indicating that a certified or qualified deaf interpreter is required when indicated by the interpreter who can hear, presents the strongest legal authority for an interpreter to rely upon in requesting that a legal matter be staffed by a deaf-hearing interpreting team.
A review of the state and federal statutory bases for retaining deaf interpreters in legal settings shows that there are six common standards or tests that, if met by the facts of a case, indicate that a deaf interpreter should be retained (Mathers, 2009). Those standards indicate that a deaf interpreter should be assigned to a case (a) when the deaf interpreter will be able to assist, improve or enhance the interpretation; (b) when the working interpreter is unable to produce a satisfactory interpretation; (c) when the working interpreter is unable to abide by the oath to interpret in an understandable language; (d) when a deaf interpreter by intimate association is able to communicate with the deaf participant; (e) when the deaf participant asks for a deaf interpreter; and (f) due to communication difficulties labeled “prelingual” deafness by testifying experts. The standards should be used to demonstrate the language to interpreting students, both deaf and non-deaf, to incorporate when advocating for the use of a deaf interpreter.
In addition to listing the standards, the statutes generally provide for the order of events which should be undertaken when the need for a deaf interpreter arises. There are three stages that need to be undertaken. First, the interpreter undertakes a self-assessment to determine if the interpretation is unsatisfactory and if a deaf interpreter would be able to assist, improve or enhance the interpretation. Next, the court must engage the deaf participant, interpreter, and attorneys in a discussion of whether the interpreter’s assessment is correct. Finally, the court must place its ruling and the factual bases for the determination on the record, which preserves the issue for appeal should an attorney object to the court’s decision.
The cases interpreting the statutes address the interpreter’s obligation to undertake an analysis of the need for a deaf interpreter. The cases inform interpreters that as soon as practicable, the court must be made aware of any language difficulties. Interpreters are required to undertake the analysis and make a clear record of their professional guidance on the issue of staffing. As noted by the NCIEC brief regarding deaf interpreters, “while it may be unrealistic to expect Deaf litigants to know the scripts necessary to trigger the duty to provide a Deaf interpreter, it is entirely reasonable to expect court interpreters to know the standards existing in the states in which they practice” (Mathers, 2009, p. 87).
When deaf interpreters are used, appeals should be anticipated. There are two common legal challenges to the use of deaf interpreters that can be differentiated between: challenges raised by defendants who can hear to the use of a deaf interpreter for deaf witnesses and challenges raised by deaf defendants to the use of a deaf interpreter either for themselves or for a deaf witness. While challenges to the use of deaf interpreters in court generally fail, the cases present a road map for interpreter educators to incorporate when instructing their students on the use of deaf interpreters in court. For example, a common theme in the challenges to deaf interpreters made by deaf defendants focuses on the deaf-hearing interpreting team being available for only part of the proceeding. As a result, interpreters must take care to both inform the court of the need at the earliest possible moment and ensure that a deaf interpreter is available for the duration of the proceedings. These suggestions have already received a stamp of approval by being published in court opinions and offer practical recommendations for the non-deaf interpreter working with a deaf interpreter in a legal setting.
Challenges to the use of deaf interpreters are also made on grounds of the private negotiations that, at times, occur between the deaf interpreter and the deaf witness or between the interpreting team members for clarification or negotiation of meaning. Termed “collective interpreting,” this process tries the patience of the court (Mathers, 2009). While collaborative interpreting can be successful at times, it must be undertaken carefully, conscientiously and always with the court’s permission and cognizance.
Finally, there is research and case law tying the field of deaf interpreting to the field of spoken language interpreting. The commonalities remind us that the issue of linguistic intermediaries is becoming increasingly more common with the globalization of the economy. For example, in a recent California case the defendant spoke a variant of Mixe, which is spoken by only a few people in the Southern Mexican state Oaxaca (Mathers, 2009). After three months and two failed attempts using interpreters who spoke different variants of Mixe, the court finally located a Mixe-Spanish interpreter who was teleconferenced in to a preliminary hearing in California where a Spanish-English court interpreter provided relay interpreting services to the court. As has been noted, “knowing the area one comes from in a region where Spanish is the dominant spoken language will not guarantee that a Spanish speaking interpreter will be able to effectively interpret for the litigant. Just like knowing that one is Deaf and uses sign language will not guarantee that a single interpreter who can hear will be an effective accommodation” (pp.100?101). Given that the legal system has far more experience with spoken language interpreting, analogies like these are useful in discussing the need for a deaf interpreter with the court.
Implications for interpreter education
The concurring opinion in State v. Linton rightly concluded that “a need for intermediary interpretation is not common, but when it exists, it is a necessity, not an option” (Linton v State, Johnson, J. concurring p. 2, 2009). This commentary has suggested that the need for deaf interpreters is more common than previously thought due to several factors, including an expanded population of deaf individuals and the inadequate number of highly skilled legal interpreters. To remedy this, interpreter education programs must modify their curricula on a number of levels to ensure that deaf interpreters are trained in the mechanics of interpreting; that interpreters who can hear are taught how to recognize, advocate and negotiate for deaf interpreters; and that the community of stakeholders is prepared for and welcomes deaf interpreters as a viable communication option.
Hence, providing information to interpreting students regarding how the legal system already works with deaf interpreters is a valuable part of the interpreter preparation curriculum. Curricula should include instruction on the legal interpretation of statutes and of the cases interpreting those statutes. Instruction should include a discussion of how the language of the statutes and guidelines can be used to negotiate for retaining deaf interpreters. The language and terminology grounded in legal precedent for working with deaf interpreters is an important knowledge area in which both deaf and hearing interpreters should demonstrate competence.
In negotiations for hiring deaf interpreters, students should demonstrate the ability to incorporate the language that courts and attorneys already know and use. The rhetoric of the Americans with Disabilities Act (ADA) is a good example from United States law. The U.S. legal system is accustomed to the language of accommodations. Describing deaf interpreters as a reasonable accommodation fits into a pre-existing mental framework understood by many courts and attorneys. In other countries, interpreter educators can review their legislative acts for language to use in support of including deaf interpreters as well.
Language borrowed from cases adjudicated with deaf litigants is also helpful in discussing specific ways that the deaf person communicates, which can indicate the need for a deaf interpreter. For example, cases have described the characteristics of deaf litigants for whom deaf interpreters may be a reasonable accommodation with terms such as a “limited fund of knowledge” or difficulty “sequencing events … presenting in a disjointed style” (Stanley v. Lazaroff, 2003, p. 416) to describe deaf litigants presenting communication issues. 4 The same case law suggests that the benefit of using deaf interpreters is to “enable [the defendant] to understand the proceedings, consult with counsel and to assist in [the] defense” (p. 417) and should be included in instructions to give interpreters proven methods of talking about the benefits with courts and other hiring parties. Likewise, the characteristics of deaf people who could benefit from a deaf interpreter, as described in the social science research, should be incorporated into the curricula for interpreters to be able to describe the reasons why deaf interpreters should be retained. In preparing interpreters to justify a deaf interpreter, these constructs are useful.
In the United States, the legal system has long recognized the validity and necessity of working with deaf interpreters. Many legal interpreting statutes include provisions defining the qualifications of deaf interpreters and setting forth the standard for courts to determine when a deaf interpreter should be retained. The U.S. legal system then presents a model which can be replicated by other countries and in other settings to increase the use and number of trained, highly qualified deaf practitioners to meet the needs of the deaf community and those with whom they interact. In addition, the statutory language is broad enough to justify the use of deaf interpreters in a wider array of settings than traditionally has been thought.
This commentary has presented a discussion regarding the current state of legal interpreting in the United States as it relates to deaf interpreters. It has suggested a number of areas which can be included in a curriculum geared towards full inclusion of deaf students as interpreting students. The following summarizes items that should be incorporated into the curricula.
Specific practicum and supervision opportunities for deaf interpreters should be devised, potentially on the model presented by Keller (2008) using Demand-Control Schema.
- Legal interpreting coursework should be implemented that is geared to the various competencies brought to an assignment by the deaf interpreter, such as the frame of consumer and the concept of deaf interpreter as lead and non-deaf interpreter as adjunct.
- Coursework on those task areas identified as unique to deaf interpreters should be developed and conducted apart from instruction with non-deaf interpreters.
- Instruction should be provided regarding the types of statutes, standards for retaining deaf interpreters, order of events, timing of the request for a deaf interpreter, and the implications for appeal.
- The limitations and benefits of collaborative interpreting should be included and students should be given opportunities to use the collaborative interpreting process.
- Interpreting students should be provided with concrete examples of spoken language interpreter cases using relay interpreting, which they can use in discussions with those involved in the legal system.
- Interpreters should know those legal proceedings that should only be staffed with deaf interpreters, such as competency hearings.
In summary, trained and qualified deaf interpreters compensate not only for the skills of non-deaf interpreters but also for the shortage of qualified legal non-deaf interpreters. When the interpreting team consists of a deaf interpreter paired with a hearing interpreter, the deaf interpreter’s generally superior linguistic skills raise the quality of the interpretation to a level consistent with the oath to interpret accurately in legal settings. A team comprised of a lead deaf interpreter and an adjunct non-deaf interpreter increases the number of qualified interpreter teams available to the legal system and to the community at large. While the suggestion is that deaf students have not been fully integrated into interpreter preparation programs, there is evidence that if curriculum and practicum opportunities materialize, there is a viable career path available to deaf interpreters, particularly in countries with statutory enactments defining a qualified deaf interpreter and setting forth a standard for when a deaf interpreter should be retained.
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