Access to justice for Deaf victims of crime: Exploring the socio-spatial side of justice

Dr. Gill Harold is a postdoctoral researcher at the Centre for Criminal Justice and Human Rights at the School of Law, UCC. Her research is funded by the Irish Research Council and is entitled ‘Exploring the Experiences of Deaf Victims in the Spaces and Processes of the Irish Criminal Justice System’.

As a social geographer, my interest in this area was awakened in 2011 when I worked as project researcher on a study funded by the National Disability Authority entitled Access to Justice for People with Disabilities as Victims of Crime (Edwards, Kilcommins and Harold, 2012). In the context of that research, I was introduced to the principle of orality as a central tenet of the adversarial process in common law jurisdictions such as Ireland; the implication of this principle sees emphasis placed on the spoken word and oral testimony. Within adversarial proceedings, the ability to articulate one’s case well is highly significant. Proficiency in spoken (and written) communication is important for providing statements to the police about incidents, for the preparation of victim impact statements, and for liaising with professionals in criminal justice agencies. This system clearly benefits the witness who is capable of articulating their case well.

Concurrent with my involvement on that research project, I was in the process of preparing my doctoral thesis which was centrally-concerned with the manner in which notions of a homogenous hearing public are imagined and reproduced in the social construction of urban space. In that work, and later in this Environment and Planning D: Society and Space paper, I engaged closely with the concept of phonocentrism, a philosophical argument often associated with the work of Derrida, which sustains the view that the spoken word is the ultimate form of communication, and in so doing I considered the ways in which we see this replicated across urban spaces and the implications for culturally Deaf citizens whose first language is Sign Language. For me, the implications of phonocentrism clearly resonated with the underpinnings of adversarialism with its implicit orality. It also became apparent that relatively little attention has been granted to the experiences of Deaf victims in a manner that fully reflects the cultural and linguistic tenets of Deaf identities. I began to wonder whether or not, and indeed how, the spaces of the criminal justice process are a microcosm of public space and as such, socially constructed in ways which assume and prioritise hearing-ness, but in a way that is exacerbated by the tenets of adversarialism and the sets of behaviours instilled in the expectations of criminal justice professionals, the judiciary and other actors such as jurors and witnesses themselves. I was also prompted to consider articulateness, and the question of who do we deem to be articulate in contemporary society? What forms of expression, and indeed what ontological positions, have come to be culturally sanctioned? In what ways are those whose first language is sign language compromised by the critically unstable, yet largely unchallenged, conflation of language and speech.

While the issue of orality has been recognised as posing a challenge to a broader category of the victim constituency, including victims with disabilities, this research is focusing specifically on access for Deaf victims. Significantly, Irish Sigh Language is not recognised in the Republic of Ireland, either officially or constitutionally. For most members of the Deaf community in Ireland, which numbers approximately 5,000 people, Irish Sign Language is their first language. This research explores whether or not the emphasis on the spoken word in adversarialism has implications which compromise the levels of access afforded to Deaf victims as they seek justice. The research critically evaluates the spaces and processes of the Irish criminal justice system from Deaf-centric perspectives. It explores policy innovations and regulatory frameworks in other common law jurisdictions to contextualise direct engagement with members of the Irish Deaf community, regarded as a linguistic and cultural minority, to uncover the perspectives that are rooted in community perceptions of the Irish legal system from victims’ viewpoints. The research is also concerned with the views of key stakeholders, including criminal justice professionals and victim support advocates, as well as looking towards the Victims Charter of 2010 to determine the extent to which those organisations that stated commitments are aware of the specific communicative requirements of Deaf victims and whether or not this is reflected in their existing policy/provision.

Essentially, this research is concerned with the socio-spatial context in which the Irish criminal justice system operates. It is interested in the spaces of justice such as Garda stations and courtrooms, and the manner in which expectations and assumptions about “normal” communication are embedded in the social fabric, and how they inform encounters between Deaf victims and other criminal justice actors.

For more information about this research, please contact Dr. Gill Harold at g.harold@ucc.ie

Child Asylum Law in the U.S. and Gang-Violence

Delighted to welcome this guest post from Jessie Chappell, immigration lawyer in St Louis, USA, who recently completed her LLM in International Human Rights Law and Public Policy at U.C.C.

Why US protection law is too complicated for unaccompanied minors fleeing gangs

JesseChappell
Central American gangs and the people fleeing them are dominating the news in the United States. As more and more people try to get out of the reach of these organizations, their children are increasingly more vulnerable. This year the number of Central American children arriving in the United States has climbed exponentially. A decade ago, unaccompanied minors from Central America numbered about 5,800 a year, last year they numbered 25,000, and this year they are estimated to rise above 60,000. The Department of Health and Human Services’ data shows that 95% of these unaccompanied minors come from Honduras, Guatemala, and El Salvador. The United Nations High Commissioner for Refugees (UNHCR) and U.S. Conference of Catholic Bishops issued separate reports connecting this influx of children to the increase of gang prevalence and breakdown in the rule of law across Central American governments.

Care of these children is rooted in former President George W. Bush’s 2008 law which was enacted to combat child trafficking. This law requires that unaccompanied Central American children in custody must be treated under the “best interest of the child” standard. While this is common legal language for the international community, the US’s lack of adoption of the CRC makes this standard more in line with international norms that most other child focused US law. This law also mentions that a child could have a legal advocate in forthcoming legal proceedings, but the state does not have to provide the advocate.

Once these children are present in the US, permanent legal protection and regularization rules mainly stem from national implementation of international sources. First, the national adoption of the 1951 UN Refugee Convention and the 1967 Protocol, offers protection for individuals who cannot return to their countries of origin because those countries cannot protect them from persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The unaccompanied child arguing for protection must convince the judge that his or her fears are credible, as determined under judicial discretion. This discretion considers the child’s recall of key events and overall attitude during the interview. Applying this protection mathematically, child must show evidence of part persecution or establish that there is more than a 10% chance of persecution in his or her home country. Even where such a chance of persecution exists, the child applicant must connect it to one of the protected grounds. Most often children in these circumstances apply for protection under “political opinion” or “particular social group” grounds.

Rio GrandeThis process is incredibly difficult, since the Board of Immigration Appeals, the appeals mechanism for asylum cases, has previously stated that a minor’s refusal to join a gang may not always be a political opinion, since gangs pursue minors in order to increase the size or influence of their gang. This effectively negates one whole category of protection for children facing gang recruitment or death. For children relying on particular social group, the Board of Immigration Appeals has stated that a group must “all share a common, immutable characteristic…such as sex, color, kinship ties… or past experiences…which cannot change or should not be required to change because it is fundamental to their individual identities or consciences.” As immigration advocates try to define their client’s group in a particular enough way, courts continue to narrow the qualifying memberships. For example, circuit courts are now requiring social visibility of a group even after the UNHCR questioned the need for such additional restrictions. In conflicting US case law, young women of a specific tribe resisting female genital mutilation were not required to meet the social visibility requirement, whereas the Board of Immigration Appeals, in the Matter of S-E-G– noted its requirement in a number recent of gang related cases.

Even where a child is able to show social visibility in a particular social ground, he or she can be denied protection. Because the Board of Immigration Appeals has not yet considered whether children with past gang affiliation are eligible for protection, circuit courts have been free to decide for themselves. Without discussion on the differences in culpability for adult and child former gang members, some courts have stated that the legislature did not intend to protect “violent street gangs who assault people” and that choosing to join a gang or receive an identifying tattoo forfeits legal protection by an assumption of risk. This presumption is inherently flawed, as research has shown that gang affiliated youth in El Salvador spent the majority of their time with peers engaging in non-criminal activities. Legal advocates cannot rely on such secondary sources, however, since few other circuits have adopted a more fact intensive analysis of protection eligibility.

The other main international standard which applied to children fleeing violence and recruitment by gangs is protection against torture. Under the UN Convention Against Torture, the US is prohibited from returning an individual if he or she fears torture at the instigation of or with the consent or acquiescence of a public authority. This protection should provide a safety net for targeted children who cannot overcome the nexus requirement of asylum law, but is rarely successful in practice due to the burden of proof being “more likely than not”, which is higher than the asylum burden.

Assuming a child is able to prove a well founded fear on account of a protected nexus group or a well founded fear of torture under CAT, he or she is still not entitled to protection. The child, in either category, must show that the child’s home country is unwilling or unable to protect them. The precise definition of this is unclear, as the US Supreme Court has yet to clarify what constitutes a “public authority’s willful awareness” of persecution or torture. Inconsistent precedent regarding this requirement adds to the unaccompanied child applicant’s challenge to remain safe in the US.

Given the trauma associated with children persecuted or forcibly recruited to join gangs, and the complicated legal hurdles discussed above, it is clear that unaccompanied children face a difficult path to legal protection. Notwithstanding language and cultural barriers, trauma and isolation in detention centers also greatly limit a child’s capacity to understand legal alternatives. Unaccompanied minors must be appointed legal advocates, in order to fully understand their legal options, in line with the international interpretation of “best interest of the child” standard. Without a trained advocate at each stage of the legal process, the laws meant to protect these vulnerable children are ineffective and inconsistent.