Language Rights:
Vulnerable Speakers,
Law and Bureaucracy
LG474 notes
Language Rights
Peter L Patrick
Univ of Essex
Language and Power, I
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1960s/70s research attributed power as
institutional: members (just) exert power as
representatives of it.
Later studies suggest power manifested thru
socioeconomic factors: age, gender, rank…
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Bias within legal system towards certain categories
(male, white, educated, middle class, citizens)
Current research: power a dynamic property,
created, maintained, exerted thru interaction
Language and Power, II
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Language is a primary mode of action for power
Inequality is the primary effect of power in action
Language is used to create/sustain/exercise power
Power+inequality influence language structure+use
Discourse= language-in-action, in the round: social/
cultural/historical/economic patterns, developments
Institutions have a dominant language/culture thru
which cases are viewed & power is exercised
Other voices are vulnerable to silencing & distortion
Claiming Power via Interaction, I
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What discourse practices function as modes of
power & entextualisation in institutional
interactions?
Key communicative practices used to maintain
power in consultations:
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1. Question Use
2. Topic Control
3. Evaluation of Responses
Also critical in asylum interviews, legal testimony
Claiming Power via Interaction, II
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When speech is linked to particular contexts,
assigned a privileged ‘reading’ – evaluated, it gets
embedded in power – and all of this transmitted…
It is then transformed/reduced by entextualisation.
Inc. transcripts/sumaries of e.g. asylum interviews,
witness statements, courtroom testimony – talk
becomes evidence in reports & legal documents.
How are people’s identities & stories represented &
transformed in decision-making contexts?
Who are vulnerable speakers?
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People in some circumstances are more vulnerable to
having their speech be silenced, distorted or ignored.
This is esp. true in bureaucratic/institutional contexts
which both restrict the speech of people, then claim the
right to interpret it & make decisions based (partly) on it.
The classic example of this is witnesses in criminal court.
Law & legal process are entirely linguistic performances.
Some categories of speakers are recognised in UK law
as “vulnerable” persons when giving witness testimony.
My notion of “vulnerable speakers” thus generalizes from
witnesses to speakers, from the UK to rest of world.
Vulnerable Witnesses in the UK, I
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Persons recognised include “children, rape victims,
persons with intellectual disability, & those who are
linguistically challenged such as non-native speakers of
the language used in the legal context” (Luchjenbroers & Aldridge 2008)
Categories later expanded to include “people who are
likely to experience fear and/or distress as a result of
social, cultural, religious, ethnic, or domestic issues…
this final group includes victims of rape”
Witnesses – but not suspects – can apply for special
measures to be used in legal procedures; their use is not
automatically granted except for children.
Categories not recognised elsewhere, eg US, Australia…
Vulnerable Witnesses in the UK, II
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Landmarks in the UK legal process:
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Systematic audio-recording of police interviews, 1980s
Definition and protection of VWs given legal force
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Achieving the best evidence in criminal proceedings: The interviewing
of vulnerable and intimidated witnesses, including children (HO 2001)
Later expanded definition of VW categories
Special measures may include: screening the witness;
(live) video, or private, evidence-taking; examination by
intermediary; communication aids; no cross-exam by
the accused in person; removing wigs & gowns; exclude
mention of personal sexual history in court.
Vulnerable Status & Settings
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Children & the very elderly as witnesses in court
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Children are already included as the only automatic category
Elderly not included in UK law; must they qualify as disabled?
People w/disabilities or mental illness in clinical settings
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Incl. in court setting; don’t same issues apply in other contexts?
Women as victims of violence, esp. rape, in legal contexts
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Should rape be only type of domestic violence where measures apply?
Ethnic minorities in standardized bureaucratic contexts
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Not all minorities/contexts: “fear & distress”, no ref. to language issues
People seeking asylum from immigration agencies, i.e.
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Those who don’t qualify by age or disability, see last category above
Vulnerable status/setting: Examples
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Land claim/native title cases, Australian Walsh (2008)
English-speaking courts embrace Western ideologies
Aboriginal witness must show traditional identity: Catch-22
More articulate = less “authentic”, but less articulate may
be seen as unconvincing, reticent, unclear case
Similar to asylum situation: ability to use English or major
language (Swahili, Std Somali) may make Tribunal doubt
claims to national, minority, or persecuted-group origin…
Restriction to little-known language leaves AS at mercy of
govt. interpreters and LADO agencies – poss. not using
their native language/dialect –> invisible damage to case
Gate-keeping vs Advocacy
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Widely recognized: we live in an “interview society”
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Interaction w/bureaucracy often requires interviews (IVs),
frequently cross-cultural (Gubrium & Holstein 2003)
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Gate-keeping: brief encounters b/w strangers where one has
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authority to affect the other’s future (Erickson & Shultz 1982)
Advocacy: encourage a client to speak for herself, or provide
her with a voice if she is unable to speak (Young 1993)
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Contrasts w/counselor: external, not internal, needs of clients
Institutional service providers often have to provide both
roles in same interaction, & struggle to reconcile them
Bureaucracy can either impose outcomes on victims, or
empower victims to make their own choices
Importance of Narration
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Victims desire to tell their story & be heard.
How do we know?
• Despite being told they’ve narrated enough (Trinch 2001),
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or not to narrate at all (Jacquemet 2004), they keep telling
Some victims of domestic violence never return to
the law clinic where they gave their testimony, for the
actual protective order (Trinch, 9/15 pro bono clinic)
Victims resist the genre of 'report’… they prefer to tell
their stories in the form of personal narratives
• If what they wanted most was e.g. a PO, would they do this?
Importance of Narration
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Narratives are teller-initiated and teller-driven, but
Reports = recipient-elicited, recipient-driven (Polanyi ‘85)
There’s also a subjective/objective contrast here:
The legal system requires that victims’ suffering
be translated into legally-relevant categories
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They get reframed as refugees, witnesses, plaintiffs, etc.
This institutional translation and reframing (i.e.,
entextualization) may be one major cause of
alienating them as clients.
From Advocate to Gate-Keeper, I
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Bureaucratic pressures of cost, time, policy:
judged on efficiency, quantity (& results...)
Asylum or domestic violence IV texts are thus
formulaic, standardized both for form & content
• Driven by bureaucratic or specialist (medical, legal)
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knowledge, and expectations of the genre,
Bureaucrats – & even advocates (Trinch’s DA paralegals )– press clients to mould individual narratives
into a successful institutional format (Ex. (13) on p. 18)
“Z is my ex-boyfriend with whom I have one child. We have been
separated for approx. 5 months… During our relationship of
about 3 years, he has threatened & psychologically abused me”
Entextualisation at Work
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This is not just a feature of final texts – ways of speaking
characteristic of legal documents invade the IV itself as
an oral gatekeeping device
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Clients co-operate in entextualization in order to proceed
in and expedite the process, and so as not to alienate
their advocate/gatekeeper (whose help is needed!)
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“Friendly” talk from advocates is used to elicit material for
coding into institutional categories, which becomes part of
the legal process
From Advocate to GateKeeper, II
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Eliciting reports – rather than facilitating narratives:
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Extensive co-construction takes over agency from victim
Routinization allows more cases to be processed quickly
W/routinization, basic politeness features disappear
GK role serves efficiency better than Advocate role
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Less alignment with client
Therapeutic functions reduced or minimized
Hidden nature of exchanges makes it unclear what speech is
required from clients, increasing stress and deception
Casts doubt on the social meanings of speech choices
How to Succeed in Interviews
while Really, Really Trying...
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For gate-keeping IVs to succeed as collaboration
• (1) client must accept that Qs are valid,
• (2) understand the questions & be capable of answering
• (3) succeed in giving relevant answers, and also
• (4) indicate awareness of framework that underlies them
• (5) yet demonstrate sincerity at the same time
• Result is a narrative which volunteers the correct &
expected set of background assumptions – w/o
betraying that one is playing a game w/rules...
(Erickson & Shultz 1982; Cook-Gumperz & Gumperz 2002;Trinch 2001)
Gate-Keeping vs Advocacy in
Protective Order Interviews, I
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Context: Interviews in legal institutions assisting victims of
domestic violence to obtain protective orders (Trinch 2001)
Data from 2 settings:
(i) District Attorney’s office with paralegal interviewers
(6 of 7 are bilingual Latina women);
(ii) pro bono legal clinic w/volunteers (none are Latino, all
use interpreters to communicate with the clients).
All victims are Latina women who use Spanish or codeswitch w/English.
Final narrative is a written/composed one in PO cases
(not necessary to ‘pass’ orally, as in asylum interviews)
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Due to advocacy role, the IVer is on ‘same side’ as client
Gate-Keeping vs Advocacy in
Protective Order Interviews, II
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Gatekeeping tasks:
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determine client eligibility for PO;
signal clients to adopt specific legal language in request, ie,
entextualization of their narrative into affidavit to the court
Advocacy tasks:
• repackage a victim’s narrative account of abuse into
• a client’s legally valid need/desire for a protective order.
Analysis:
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juxtaposes oral (recorded) narrative of abuse by client with
written affidavit drafted by the legally-trained interviewer
Research Questions
(Trinch 2001)
What linguistic devices are employed to manage
dual Advocate/Gatekeeper identities?
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What can written texts tell us about interviewers'
willingness to empower clients?
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How do social identities of IVers surface in the
construction of discursive Advo/G-K identity?
More generally,
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In interaction w/the legal system, what contributes
to the feeling on the part of battered women and
rape victims that they have been assaulted anew,
blamed or at best unaccompanied in the process?
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Can we ask the same Q about asylum seekers?
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Analytic framework: Politeness &
Interactional Discourse Analysis
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Context of advocacy and/or gatekeeping is constructed
via contextualization cues (Gumperz) & social frameworks.
Several frames may be in operation at the same time.
Shifts in footing (∴ frame), i.e. alignment towards client
or institution, serve to manage dual Advo/GK identities.
Use of exclusive/inclusive pronouns to assert G-K
institutional function:
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¿Qué es que quieres que hagamos por tí?
What is it that you want us to do for you?
Exclusive pronoun use occurs in 9 of the 15 District
Attorney IVs, emphasizing G-K role.
Contrast: pro bono vs paralegals
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The pro bono clinic volunteers often use inclusive we (if
ambiguously) to evoke solidarity with the client, portraying
client and IVer as involved in joint effort:
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(to interpreter) “Well we, we are, that’s what she’s here for,
we’re going to get a restraining order to prevent him from
coming within a hundred yards of her” (Trinch 2001, ex. 4)
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Pro bono IVers often explain why they strive for a fixed
format; Latina paralegals tend not to give such accounts.
Latter works to intensify authority and entrench G-K role.
Analytic framework: Politeness
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Politeness – used to mitigate FTAs generally – functions
to express advocacy goals.
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Positive politeness validates client’s feelings/concerns;
Negative P empowers the client to be agentive.
Politeness strategies employed for advocacy include:
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Claim common ground b/w interviewer and client
Convey cooperation, joint action in a mutual enterprise
Simply, succeed in fulfilling client’s need (=request PO)
Allow people to tell stories in their own voices.
Contrast: PO vs Asylum interviews
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In asylum IVs there is no advocacy role – only G-K
ASs already know the ‘rules of the game’:
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Some have been interrogated with force back home
Many are currently enmeshed in a series of interviews
with the asylum-granting bureaucracy
Overt objectives
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(Case-worker:) Extracting objective truth of fact, vs
(Claimant:) Performance of personal veracity and morality
Covert objectives
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(Case-worker:) Carrying out policy goals and ends, vs
(Claimant:) Achieving freedom and safety
Failure in Asylum Interviews
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Conditions of performance lead almost inevitably to failure,
for which only the asylum seeker is blamed.
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to understand what is required in bureaucratic interactions (in a
foreign country);
to successfully contest a choice of (non-native) language that is
inappropriate for both participants and for the context,
to maneuver for time to recall details of a complex narrative,
to overcome the inequalities inherent in the setting, role relations
and expectations of the interlocutors,
to be aware of misinterpretations by the officials and correct them,
to portray oneself in a favourable moral light through speech.
Failure in Asylum Interviews
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AS lost in strange land w/o family, language, culture
IVer equally subjective: rely on own morality, politics,
cultural assumptions about nationality & monolingualism
Basic condition of linguistic prejudice and inequality
is met: negative moral judgment of AS,
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for selecting inappropriately from among the linguistic
choices that lie open to them, even when
the 'appropriate' choices are unrealistic or impossible.
Argument: Asylum seekers are also vulnerable speakers
Q: Where do the language rights of asylum seekers lie?
References
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Birch, Diane. 2000. A better deal for vulnerable witnesses? Criminal Law Review
(April): 223-249.
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Brown, Penelope & Stephen C. Levinson. 1987. Politeness: Some universals in
language use. Cambridge University Press.
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Cook-Gumperz, Jenny &Gumperz, John J. 2002. Narrative accounts in gatekeeping interviews: Intercultural differences or common misunderstandings?
Language and Intercultural Communication 2(1): 25–36.
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Erickson, Frederick & Jeffrey Shultz. 1982. The counselor as gatekeeper: Social
interaction in interviews. NY: Academic Press.
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Gubrium, Jaber & James Holstein. 2003. From the individual interview to the
interview society. In J Gubrium & J Holstein, eds., Postmodern interviewing.
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Home Office. 2001. Achieving the best evidence in criminal proceedings: The
interviewing of vulnerable &intimidated witnesses, including children. HMSO.
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Jacquemet, Marco. 2004. Transcribing refugees: The entextualization of asylumseekers' hearings in a transidiomatic environment. Text and Talk, 29 (5): 525-546.
References
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Luchjenbroers, June, & Michelle Aldridge, eds. 2008. Language and Vulnerable
Witnesses across Legal Contexts. Journal of English Linguistics 36(3).
Trinch, Shonna L. 2001. The advocate as gatekeeper: the limits of politeness in
protective order interviews with Latina survivors of domestic abuse. Journal of
Sociolinguistics 5(4): 475–506.
Walsh, Michael. 2008. "Which way?" Difficult options for vulnerable witnesses
in Australian Aboriginal land claim and native title cases. Journal of English
Linguistics 36(3): 239-265.