By Jean F. Andrews
I’ve been in court, when both judges and prosecuting attorneys were not familiar with the term linguistic incompetence, and how it related to a deaf defendant’s case. They were familiar with the term, mental incompetence. Mental incompetence is defined as the inability is of a person to make or carry out important decisions, or is psychotic or of an unsound mind, either consistently or sporadically, by reason of mental disabilities such as cognitive disabilities, schizophrenia, and dementia.
But linguistic incompetence or the lack of language ability to understand the court proceedings or inability to have the language to even work with one’s attorney baffles the court. Attorneys often will request competency hearings prior to a trial or a hearing to address the issue of linguistic incompetence of the deaf defendant head on. This is wise to get this issue out in the open.
These six factors may clarify for attorneys, judges and other court officials about the term, linguistic incompetence. Since deafness is a low incident disability, most juridical officials may never have encountered a deaf defendant. But today we are seeing more and more deaf persons involved with legal matters so this information may be useful and helpful in a future case.
The first factor contributing to linguistic incompetence is the lack of early, consistent and fluent sign language. Many of us are familiar with Victor, the Wild Child of Averyron who was found in the woods in France, in 1797. He was a teenager and had no language. Or we may have read about Genie, a girl who was strapped to a potty seat and locked in a closet until she was rescued in later childhood. Both Victor and Genie were not able to learn much language even after years of training. But their lack of language access was combined with emotional and physical neglect and abuse. Similar to Victor and Genie, there are many deaf persons who by nature of their deafness are physically isolated from daily communication and language. These modern day closet deaf adults, by nature of their parents not learning to sign or only learning a few basic signs and gestures, grow up severely language impoverished. Consequently, they are not able to defend themselves in court.
A second major factor contributing to linguistic incompetence is the poor educational training many deaf children and youth experience in our public schools. Inclusion, or the mainstreaming and including of deaf children with hearing children, has been termed the “great delusion.” Many children leave these schools with an inferior education, and inability to communicate in sign or in English. Because residential schools provide a rich linguistic and cultural environment, many of these schools do a better job of providing round-the-clock language access, however most parents use residential schools as a last resort, sending their deaf youth there when they reach the teenage years, after they have already failed out in the public schools.
A third major contributory factor to linguistic incompetence stems from the isolation that families impose on deaf youth, by keeping them sheltered and isolated at home, without additional training and education. This happens more frequently in Third World countries. However, in my clinical practice, I have come across about 10 such deaf adults, more often who live in rural areas. Though well intended, their families keep their deaf adult child at home, live off of their SSI, and create an even more isolated environment where the deaf adults live without language, and are prevented from getting the skills to learn a job or become independent.
A fourth major contributing factor to linguistic incompetence is the 2.9 or below reading grade level. The ability to read is related to language, type of instruction, and motivation. Many of these linguistically incompetent deaf adults can’t read and this creates major obstacles from the arrest, the booking, the trial and on through rehabilitation.
The presence of a language and learning disability in addition to deafness, is the fifth contributing factor to linguistic incompetence. Some of the deaf adults that I have tested, could very well have an undiagnosed sign language disability in addition to their low reading levels. Most have average non-verbal intelligence abilities, but some do not. Their non-verbal IQ dips below 80 which signals low cognitive skills.
Finally, the sixth major contributing factor to linguistic incompetence is poor, underdeveloped sign language skills, that would not allow them to effectively use a sign language interpreter or even a CDI (Certified Deaf Interpreter).
These six factors can inform the judge, prosecuting attorneys, defense attorneys and other criminal justice officials. What is at stake here are the Constitutional Rights of the deaf defendant. Understanding the deaf defendant and linguistic incompetence will provide the court system with the understanding of the obstacles that deaf defendants face.
Jean F. Andrews is a Reading Specialist and Professor of Deaf Studies/Deaf Education at Lamar University.