Restraining Orders and Language Barriers in the Courtroom

The importance of a translator should never be underestimated. In a state like California where more than 8 million cases are heard each year and more than 220 languages are spoken, court-appointed translators can be crucial to both criminal and civil legal proceedings. If defendants in California court proceedings are not able to understand the charges, allegations, or proceedings then they cannot effectively defend themselves. Court-appointed interpreters are employed to ensure that defendants – in both criminal and civil proceedings – understand what is going on. California has initiated a “language access plan” which aims to ensure that interpreters are available in all cases involving non-English speaking parties. The plan focuses on criminal and high-priority civil cases. This includes hearings where restraining orders are requested and/or issued.

Why does California think it is important to ensure that parties affected by a restraining order have access to an interpreter? The answer is likely two-fold. First, a restraining order is essentially useless if the subject of the order doesn’t know what they are legally prohibited from doing. Second, a restraining order can only be violated if the subject (a) has knowledge of the order, (b) has been afforded the opportunity to learn about the contents of the order, and (c) intentionally violates the terms. If a legal hearing is conducted entirely in English – when the subject of the restraining order only speaks and understands Spanish or Chinese – it may be difficult to hold that person criminally responsible for any violations of the restraining order.

How does a person obtain the required “knowledge” of a restraining order issued against them? California law says that a person will be considered to have knowledge if one of three things happens:

  1. You are personally present at the court hearing where the restraining order is issued against you;
  2. You are personally served by first-class mail with a copy of the restraining order; or
  3. You are personally notified by a law enforcement officer.

Years ago, civil proceedings in California could be conducted without the assistance of a language interpreter. However, California law now requires that interpreters be made available in any legal proceeding. This new requirement helps to ensure that the “knowledge” components of a restraining order are satisfied. Before this requirement, a subject of a restraining order could potentially argue that he or she lacked the required knowledge because they were not given the option to have an interpreter present. This argument would be much more difficult today. Most courts will ask the potential subject of a restraining order – if they are present at the hearing – if they require the assistance of a language interpreter. So, if a person is present at the hearing where the restraining order is issued, he or she will be considered to have knowledge. Failure of communication that is based on language may no longer be an obstacle to having knowledge.

What happens if the subject of a restraining order is not present at the hearing in which they restraining order is issued? It may be easier to work around any language barriers that exist. This is because the order must be issued in writing and personally served to the subject. The order can easily be translated into a language known to be spoken by the subject of the order. If, for example, you only speak French the court can ensure that the order is properly and accurately translated into the French language before it is served. Alternatively, the court can make sure that prominent contact information for a translator is included in the service.

Knowledge of a restraining order – and its contents – is incredibly important. Without proof of knowledge, a victim of a restraining order may not have any legal recourse for violations of an order of protection. Punishments for restraining orders can only be imposed if a subject intentionally violates the terms of the order. Language barriers can pose a threat to satisfying these legal elements. As California imposes additional requirements for interpretive services in all of its courtrooms this threat is reduced.

California concedes that it will likely never have enough full-time interpreters to be present at each and every legal proceeding in the state. When more than 220 languages spoken and more than eight million cases are heard in a given year, it is nearly impossible to reach each and every proceeding. However, California will continue to focus its interpretive services to sensitive and critical legal proceedings. In those cases where California fails to provide access to an interpreter, you should not be held responsible for any inadvertent violations of a restraining order. Find a good criminal defense attorney if you need more assistance.

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