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ABSTRACT
The current study seeks to better understand the experiences of English as Second Language (ELS) and/or Limited English Proficiency (LEP) petitioners as they access the court system for civil protection orders. In analyzing structured observations of protection order hearings, three themes emerged: 1) Delays in Court for ESL/LEP Cases, 2) Judicial Reactions to ESL/LEP Applications, and 3) ESL/LEP Petitioners’ Experiences are Lost in Translation. Together, these themes suggest that language barriers exacerbate vulnerability to re-victimization and contribute to a broader understanding of justice system linguistic integration. To better address the needs of ESL/LEP populations, civil court systems must not only employ additional qualified interpreters but also ensure that they have received the highest certification possible. Acquiring added fiscal resources is key. Directions for future research are also noted.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1. ESL/LEP individuals are persons with limited- and non-English proficient understandings of the English language and include undocumented immigrants, lawful permanent residents, green card holders, naturalized U.S. Citizens, and U.S. born English proficient children/dependents of ESL/LEP individuals (Crawford, Citation2007).
2. ‘DV’ and ‘IPV’ are used to describe patterns of abusive behavior that are sexual, physical, verbal, and/or emotional by one person (offender) to gain or maintain power/control over another person (victim). While the two terms are used interchangeably, they do have different origins. See Tjaden and Thoennes (Citation2000) and Garcia-Moreno et al. (Citation2006).
3. Very few research projects have focused on the experiences of ESL/LEP petitioners and even less have focused on ESL/LEP respondents.
4. ‘Access to justice’ typically means equitable access to the legal system, primarily for low-income and moderate-income individuals, including barriers to legal access (Erez, Citation2002; Meeker & Dombrink, Citation1992). Broadly, access to justice literature focuses on who is able or willing to use civil law (i.e. who has access) and with what results (i.e. who receives what kind of justice). This literature includes an analysis of gender, race, and class inequalities associated with the unequal distribution of legal resources and costs that are, in effect, intimately connected to legal experiences that further reproduce inequalities (Sandefur, Citation2008).
5. Pro se is Latin ‘for oneself’ or ‘on one’s own behalf,’ as established in the United States, and ensconced in State and Federal law (Faretta v. California, 422 U.S. 806, Citation1975).
6. CPOs typically include orders that the respondent stay away from the protected party, not engage in further acts of abuse, and surrender firearms. Courts may also order the respondent to attend batterer treatment, reimburse the protected party for costs incurred, and pay the protected party’s attorney fees. Depending on jurisdiction, CPOs also incorporates legal remedies like orders for child custody, child and spousal support, and exclusive use of family property. Several states and the District of Columbia also allow pets to be included as protected parties on CPOs.
7. Since CPOs are civil orders, petitioners (rather than the state, as in criminal cases) initiate the process. Compared to restraining orders in criminal trials, applications for CPOs allow for a lower standard of proof (Hamby, Citation2014). Eligibility for a CPO is based on whether or not 1) the two parties have a ‘domestic’ relationship (i.e. related by blood or marriage, have/had a romantic and/or dating relationship, share a child in common, and/or share a residence in common) and 2) the judge or hearing master supports the victim’s claim that an act of DV/IPV occurred between the two parties (Messing et al., Citation2016).
8. National Center for the State Courts with updated publications, facts, and figures, available at http://www.ncsc.org/(last accessed on 31 May 2019).
9. States without a mandatory written requirement include (abbreviated): AK, AZ, AR, CA, CO, CT, DE, FL, HI, IL, MI, NV, NC, OK, RI, TN, VA (Abel, Citation2010, p. 12). The state that this courtroom is located is one of the 17 that do not have mandatory requirements to provide court-employed translators and/or interpreters.
10. See Title VI of the Civil Rights Act of (Citation1964) that ensures language access for individuals with limited English proficiency (42 U.S.C. §2000d et seq.); Lau v. Nichols, 414 U.S. 563 (1974) (affirming that Title VI prohibits discrimination against LEP individuals on the basis of language).
11. Reviewed/approved by Institutional Review Board (IRB) and compliant with human subjects protection rules and regulations (Human Subjects Approval, UNLV HS Protocol #: 1305–4475 M).
12. ‘Master’ interpreters hold the state court interpreter certification and achieved a score of 80% or higher on the written test and on three oral exams and also passed the federal certification examination. ‘Certified’ interpreters completed an orientation workshop for interpreters in the court system, passed the written exam with a score of 70% or higher, obtained 40 hours of court observation work within 12 months, underwent oral proficiency exams, and passed a background check. ‘Registered’ interpreters have met the requirements as the ‘Certified’ interpreters, yet no oral examination has been developed for their particular language.
13. Based on current roster for the county in which the research site is located, there were 10 Master Level Spanish Court Interpreters, 81 Registered Spanish Court Interpreters, 1 Master’s Level Japanese Court Interpreter, 2 Registered Japanese Court Interpreters, 2 Registered Portuguese Court Interpreters, 2 Registered German Court Interpreters, 2 Registered Amharic Court Interpreters, and only 1 Registered Court Interpreter for Mandarin, Vietnamese, Italian, Korean, Bulgarian, and Slovak.
14. For the total 303 cases observed, both of these scenarios occurred twice. For the 30 cases analyzed for this paper, these scenarios did not occur.
15. During the academic year (September – May), observation schedules were chosen based on randomly selecting 1 week of the month to observe for each month. Then, research members were randomly assigned to both morning and afternoon dockets for that week. During the summer months (June – August), observation schedules were chosen in this same way except observations randomly occurred for every week of the month. Thus, more observations did occur during the summer months.
16. Researchers also made note of when respondents required the use of court-employed interpreters. Presumably, respondents’ articulations in court also become lost in translation. Due to a lack of cases where a respondent spoke in court via interpreter, the focus of this paper remains on petitioners’ experiences.
17. 9 of 303 total cases observed are roughly three percent (2.97%). For a courtroom that overhears approximately 7,000 cases annually, and since the 30 ESL/LEP cases were randomly heard throughout the duration of this research project, this could mean that an average of 208 CPO cases could continue without language accommodation requested.
18. Research team members do not speak or understand Arabic. For this case, since an interpreter was not available, the parties were required to communicate in English. Because of this, transcription was documented in English.
19. Research team members do not speak or understand Filipino Tagalog.
20. See also the Human Rights Commission information about discrimination at the workplace available here: https://www.humanrightscommission.vic.gov.au/the-workplace/workplace-discrimination (last accessed on 4 August 2019).
21. Research team members do not speak/understand Mandarin. We do not know for fact that statements made by members of the respondent’s family were accurate. We assume that their claims were valid since the court-employed interpreter did not negate or question the family’s interpretation. Also, the fact that the hearing master allowed the family’s testimony to be entered on record also supports this notion.
Additional information
Notes on contributors
Emily I. Troshynski
Emily I. Troshynski is an Associate Professor of Criminal Justice at The University of Nevada, Las Vegas (UNLV) where she also has affiliated appointments with UNLV’s program on Gender and Sexuality Studies as well as UNLV’s new School of Medicine. Troshynski received her Ph.D. in Criminology, Law, and Society from the University of California, Irvine (UCI) with a graduate feminist emphasis (GFE) from the Department of Women’s Studies (now, Department of Gender and Sexuality Studies). She also holds a M.Sc. in Sociology from The London School of Economics and Political Science (LSE). Troshynski’s research interests include understanding the social causes of deviance, violence, and victimization. The goals of her research are to critically, theoretically, and empirically uncover how law and society inform justice system policies and practices. This line of research has had two main foci: 1) experiences of gendered violence and justice system responses (i.e. human trafficking; domestic and intimate partner violence; sex crimes) and 2) realities of community corrections as experienced by parolees as they re-enter society (i.e. shifts in punishment and social control via changes in rules and regulations).
Alexa Bejinariu
Alexa Bejinariu is a Ph.D. candidate in the Department of Criminal Justice at the University of Nevada, Las Vegas (UNLV) where she teaches an upper-division course on quantitative applications in criminal justice. She received her B.A. and M.A. in Criminal Justice from UNLV. Bejinariu’s research interests include civil domestic violence protection orders, human trafficking, and prisoner reentry program evaluation. Currently, Bejinariu is working on a collaborative interdisciplinary research project that explores the physical and psychological barriers victims encounter when attempting to exit commercial sexual exploitation. She is also part of the Division on Critical Criminology and Social Justice (DCCSJ) Communications Team, responsible for developing The Critical Criminologist, the Division’s tri-annual newsletter.
Carolyn S. Willis
Carolyn S. Willis holds a Master’s degree in Criminal Justice from the University of Nevada, Las Vegas. She is currently pursuing her Ph.D. in Public Affairs in the School of Public Policy and Leadership at the University of Nevada, Las Vegas. Her research interests include crime and criminal behavior, victimization, community-based corrections, restorative justice, offender reintegration, advocacy, public policy, and nonprofit management. Having a multidisciplinary perspective has allowed Carolyn to merge her experiences and education to become an advocate in the reentry community. Carolyn currently works as the Program Manager at a local non-profit organization while pursuing her Ph.D. In her professional capacity, Carolyn primarily focuses on assessing clients’ needs to develop programmatic components and implement policies, intended to assist justice-involved persons to overcome transitional challenges and reintegrate into their community. In the academic arena, Carolyn explored victimization as she examined attitudes and perceptions toward sex tourism in Las Vegas. She continues to conduct research on offender reintegration – policies, employment outcomes, and recidivism.
A Faculty Opportunity Award (FOA) under the University of Nevada, Las Vegas (UNLV) Division of Research and Economic Development supported this work.