Amendment to protect victims of sexual assault passes

[bobalot]

Franken amendment to protect victims of sexual assault passes

An amendment that would ban federal funds going to companies that require arbitration in the case of sexual assault passed the Senate on Tuesday. The amendment was offered by Sen. Al Franken and was added to the defense appropriations bill by a vote of 68 to 30.

The amendment was offered after Jamie Leigh Jones, an employee of Kellogg, Brown & Root (formerly a subsidiary of Halliburton) was sexually assaulted by her co-workers in Iraq and then locked in a shipping crate when she tried to report the rape. Her return to the United States was facilitated by U.S. Rep. Ted Poe, R-Tex., but upon her return, she learned that the fine print of her employment contract banned her from taking the case to court.

On the Senate floor, Sen. Jeff Sessions, R-Ala., called it “a political attack directed at Halliburton.”

Franken rebutted, “This amendment does not single out a single contractor. This amendment would defund any contractor that refuses to give a victim of rape their day in court.”

The amendment was supported by a number of Minnesota organizations including Advocates for Human Rights, Breaking Free, Casa de Esperanza, Mid Minnesota Legal Assistance, the Minnesota Coalition against Sexual Assault, the Minnesota Indian Women’s Resource Center, the Minnesota Indian Women’s Sexual Assault Coalition, the Minnesota National Organization for Women, Minnesota Women Lawyers and the Sexual Violence Center.

“I’m proud of what we accomplished today. Victims of sexual assault deserve their day in court and no corporation should be able to deny them that right,” Franken said. “Jamie’s courage in telling her story will help women all over this country and I’m honored to have been a part of that.”

Jones also praised passage of the amendment. “This amendment makes all the hard times that I have gone through, when going public with such a personal tragedy, worth every tear shed from telling and retelling my horrific experience,” she said. “I am highly honored that Senator Franken and his wife have created this amendment to ensure that others do not have to endure the suffering that I have.”

Source


It's about time. Seriously, 4 years? What the fuck.

Interestingly enough, 3/4 Republicans voted against the amendment.

[PeZook]

This is great, but how about simply making it illegal to force employees into arbitration in criminal cases? This way, it's totally half-assed: it means any company that doesn't take federal funds can force employees not to press fucking rape charges.

As a matter of fact, how come it's at all possible? Isn't one of the basic tenets of law that a private contract cannot contradict the law?

Either the article is suffering from a serious cause of journalistic simplification (quite possible, actually), or the US has really, really lousy law.

[Edi]

This is great, but how about simply making it illegal to force employees into arbitration in criminal cases? This way, it's totally half-assed: it means any company that doesn't take federal funds can force employees not to press fucking rape charges.

As a matter of fact, how come it's at all possible? Isn't one of the basic tenets of law that a private contract cannot contradict the law?

Either the article is suffering from a serious cause of journalistic simplification (quite possible, actually), or the US has really, really lousy law.

US laws in this regard have been fucked up beyond all reason for a very long time.

[Einhander Sn0m4n]

US laws in this regard have been fucked up beyond all reason for a very long time.

And almost invariably in favor of Big Business's inalienable right to massive profit while running as rough-shod as possible (without causing an armed uprising) over the rights of the People. Of course, KBR might have just been making an example of this woman and got a bit too blatant about it. After all, the Corporation is Mother, the Corporation is Father, the Corporation is God Almighty Incarnate

[PeZook]

I wonder how exactly does this work, though. Can I include fine print in my contract saying "If you quit we'll murder your family, and if you try to rat us out to the cops you will have to pay 100 million"?

[Serafina]

I wonder how exactly does this work, though. Can I include fine print in my contract saying "If you quit we'll murder your family, and if you try to rat us out to the cops you will have to pay 100 million"?

Propably more like "if you cause legal trouble for our company (like sueing someone working for us) then we will fire and fine you".

Which is bat-shit insane - but i am not surprised at all, i guess i am turning quite cynic here.

[PeZook]

I know it's not very rational, but I'm having major trouble accepting how this is actually possible to pull off, or more precisely: how this system could work for so long without collapsing due to outrage after one high-profile case.

It's the kind of thing, after all, which guarantees someone somewhere will eventually get shot by a disgruntled employee. Especially in gun-crazy America.

[Glimmervoid]

I’m a bit confused. I thought that the state had a public interest in prosecuting crimes regardless of the wishes of the victim. For example the charges not being dropped in the Polanski case despite the victim asking for them to be. Or, to give a British example, the case of Laskey, Jaggard and Brown v United Kingdom were consent was ruled not a defence to physical or psychological harm. Am I missing something?

Edit

Yes I am missing something, this is talking about civil not criminal law.

[Simon_Jester]

This is great, but how about simply making it illegal to force employees into arbitration in criminal cases? This way, it's totally half-assed: it means any company that doesn't take federal funds can force employees not to press fucking rape charges.

It's totally half-assed, but it's also extremely easy to pass, because you can point to any enemy of the bill and say that they are pro-rape.

It's a clever tactical move from the Comedian Senator, if you ask me.

As a matter of fact, how come it's at all possible? Isn't one of the basic tenets of law that a private contract cannot contradict the law?

Either the article is suffering from a serious cause of journalistic simplification (quite possible, actually), or the US has really, really lousy law.

We do, but it illegal contracts are still invalid in the US. The problem is that while this is a very good legal principle, it can be problematic in practice for people who are afraid of things like losing their jobs.

[Ariphaos]

This is great, but how about simply making it illegal to force employees into arbitration in criminal cases? This way, it's totally half-assed: it means any company that doesn't take federal funds can force employees not to press fucking rape charges.

As a matter of fact, how come it's at all possible? Isn't one of the basic tenets of law that a private contract cannot contradict the law?

Either the article is suffering from a serious cause of journalistic simplification (quite possible, actually), or the US has really, really lousy law.

This is simply an amendment to the fiscal bill. I have no idea why the thirty republicans thought this was a good idea. "Richard Burr, pro-gang rape" is not going to help his election chances. Hell I imagine "Mike Crapo, champion of gang rape" could even hit pretty hard.

But no, in principle, arbitration cannot prevent charges from being filed - but it's taken years just to get that into 5th district case law.

[Metatwaddle]

Has anyone checked out the roll call on this one? The "nay" votes read like a membership list for the Senate Asshole Committee: DeMint, Inhofe, Brownback, Cornyn, Coburn, Corker, McConnell, Chambliss, Ensign, Vitter... they're all there.

It's also interesting to note that out of 36 Republican men, only 6 of them voted for this amendment--about 17%. That means that 83% of Republican men in the Senate are pro-rape. I wish I could say I was surprised. (All four Republican women voted for it: Snowe, Collins, Hutchison, Murkowski.)

[Master of Ossus]

I’m a bit confused. I thought that the state had a public interest in prosecuting crimes regardless of the wishes of the victim. For example the charges not being dropped in the Polanski case despite the victim asking for them to be. Or, to give a British example, the case of Laskey, Jaggard and Brown v United Kingdom were consent was ruled not a defence to physical or psychological harm. Am I missing something?

Edit

Yes I am missing something, this is talking about civil not criminal law.

Moreover, even if you have to go to arbitration initially you can always appeal to a district or trial court and even get a jury trial. Arbitration clauses are generally broadly-worded (i.e., if you sue the company for any reason related to your employment you have to take it to an arbitrator, first), and it's obviously in the public interest to encouraging people to arbitrate rather than going to court in many, many circumstances.

Also, the victim here could always have sued the rapists directly in a trial court, if she so chose. The arbitration clause really ought to apply only to the company, since she obviously didn't sign a contract with the rapists agreeing to a binding arbitration clause.

[Alyrium Denryle]

I’m a bit confused. I thought that the state had a public interest in prosecuting crimes regardless of the wishes of the victim. For example the charges not being dropped in the Polanski case despite the victim asking for them to be. Or, to give a British example, the case of Laskey, Jaggard and Brown v United Kingdom were consent was ruled not a defence to physical or psychological harm. Am I missing something?

Edit

Yes I am missing something, this is talking about civil not criminal law.

Moreover, even if you have to go to arbitration initially you can always appeal to a district or trial court and even get a jury trial. Arbitration clauses are generally broadly-worded (i.e., if you sue the company for any reason related to your employment you have to take it to an arbitrator, first), and it's obviously in the public interest to encouraging people to arbitrate rather than going to court in many, many circumstances.

Also, the victim here could always have sued the rapists directly in a trial court, if she so chose. The arbitration clause really ought to apply only to the company, since she obviously didn't sign a contract with the rapists agreeing to a binding arbitration clause.

Arbitration might be useful if the arbitrators were independent, but they are not. They are hired by the company in question and want repeat business, they have an incentive to "arbitrate" in the company's favor. KBR itself was Criminally Negligent. it might as well have handed the rapists fucking permission. It then imprisoned a rape victim in a shipping container and denied her contact with the outside world. They committed so many fucking criminal offenses in that one instance (including obstruction of justice and destruction of evidence, in which our fucking state department was complicit) that their corporate execs need to be stuffed into a burlap sack and beaten with reeds. As a matter of fact, their enforcement of the arbitration clause ought warrant Obstruction charges.

[Ariphaos]

Also, the victim here could always have sued the rapists directly in a trial court, if she so chose. The arbitration clause really ought to apply only to the company, since she obviously didn't sign a contract with the rapists agreeing to a binding arbitration clause.

...has anything anywhere indicated that she would be able to determine who they were without suing KBR, since she was in fact drugged and gang-raped?

[K. A. Pital]

Wait, how could you sue the individuals for rape, but not the organization they were working for? That makes completely no sense to me. If you employ and cover the identities of rapists, or otherwise protect the rapists as your employees in court, you should suffer the consequences. No contract clauses could ever injure the right of the victim to take whatever measures necessary against both the individuals and the company in case it continues to affiliate itself with the rapists in whatsoever fashion in the civil or criminal case.

[Thanas]

Wait, how could you sue the individuals for rape, but not the organization they were working for? That makes completely no sense to me. If you employ and cover the identities of rapists, or otherwise protect the rapists as your employees in court, you should suffer the consequences. No contract clauses could ever injure the right of the victim to take whatever measures necessary against both the individuals and the company in case it continues to affiliate itself with the rapists in whatsoever fashion in the civil or criminal case.

It turns out that american companies have no duty of care to their employees. Because that is essentially what the people who argue against this amemndment are saying.

[Master of Ossus]

Wait, how could you sue the individuals for rape, but not the organization they were working for? That makes completely no sense to me.

Because the employees and companies are different things? And she can sue the company, too, she just has to arbitrate first because she signed a contract promising that she would.

If you employ and cover the identities of rapists, or otherwise protect the rapists as your employees in court, you should suffer the consequences. No contract clauses could ever injure the right of the victim to take whatever measures necessary against both the individuals and the company in case it continues to affiliate itself with the rapists in whatsoever fashion in the civil or criminal case.

I'm not familiar with the facts of this particular case, but this amendment obviously precludes a much broader range of contracts and such, so you can't defend the amendment by arguing the specifics of the case.

[Ariphaos]

Because the employees and companies are different things? And she can sue the company, too, she just has to arbitrate first because she signed a contract promising that she would.

Only if the supreme court rules in her favor, which I would find to be unlikely. You cannot sign away your rights. That includes things like duty of care.

I'm not familiar with the facts of this particular case, but this amendment obviously precludes a much broader range of contracts and such, so you can't defend the amendment by arguing the specifics of the case.

It covers harassment and assault, sexual or otherwise. It covers false imprisonment. It covers employment negligence. It covers intentional infliction of emotional distress.

http://thomas.loc.gov/cgi-bin/query/F?r ... 1ZH9QfG:e0:

On page 245, between lines 8 and 9, insert the following:

Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.

None of these provisions are overbroad. Intentional infliction of emotional distress has a legal definition. As does employer negligence. Arbitration has no place in these arenas.

[Ariphaos]

And I will agree that IIED is frequently frivolous. However, cases like Jamie Leigh Jones are why a court should determine such a thing, rather than an arbitration committee with an unknown bias.

[Ariphaos]

Gah, should be:

Only if the supreme court rules against her, which I would find to be unlikely. You cannot sign away your rights. That includes things like duty of care.

[PeZook]

What is this nonsense about "suing" anyone about this, anyway? It's not a civil case. She should be able to report the crime, and the criminal justice system should come down on those responsible. This is why I found this clause so incredulous and wondered if there's more detail to be had: why didn't she simply call up the district attorney's office and report the crime?

[Master of Ossus]

Only if the supreme court rules in her favor, which I would find to be unlikely. You cannot sign away your rights. That includes things like duty of care.

Uh... okay, first of all you can sign away someone else's duty of care for you, at least to a very great degree. Ever read an indemnification clause?

More importantly, she didn't sign away her rights: she just agreed to arbitrate claims against the company before she sued them in a trial court. And, as I mentioned before, she can always appeal the arbitrator's decision to a trial or district court. It's not like the agreement she signed leaves her with no legal remedy.

It covers harassment and assault, sexual or otherwise. It covers false imprisonment. It covers employment negligence. It covers intentional infliction of emotional distress.

http://thomas.loc.gov/cgi-bin/query/F?r ... 1ZH9QfG:e0:

On page 245, between lines 8 and 9, insert the following:

Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.

None of these provisions are overbroad. Intentional infliction of emotional distress has a legal definition. As does employer negligence. Arbitration has no place in these arenas.

Why not? Arbitration is an alternative dispute mechanism which is designed to handle things like this inexpensively. Moreover, why the fuck is arbitration inappropriate for handling "negligent retention" claims, or "negligent supervision" claims?

[Master of Ossus]

What is this nonsense about "suing" anyone about this, anyway? It's not a civil case. She should be able to report the crime, and the criminal justice system should come down on those responsible. This is why I found this clause so incredulous and wondered if there's more detail to be had: why didn't she simply call up the district attorney's office and report the crime?

There is both a criminal aspect of this case and a civil aspect to it. The state is obviously interested in a criminal prosecution, here, but that doesn't mean that the victim here has no civil claim.

[Ariphaos]

Uh... okay, first of all you can sign away someone else's duty of care for you, at least to a very great degree. Ever read an indemnification clause?

That does not magically make them enforceable.

More importantly, she didn't sign away her rights: she just agreed to arbitrate claims against the company before she sued them in a trial court. And, as I mentioned before, she can always appeal the arbitrator's decision to a trial or district court. It's not like the agreement she signed leaves her with no legal remedy.

You don't appeal arbitration decisions, you get them vacated. Essentially, getting the arbitration vacated under those terms means that that specific arbitration should never have taken place, for whatever reason.

To quote the valid reasons for vacating an arbitration:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

Which of those clauses would she have been able to find cause for vacation under, that does not bring up the question of why arbitration is allowed in the first place?

Why not? Arbitration is an alternative dispute mechanism which is designed to handle things like this inexpensively.

If you are going to claim that arbitration was designed to resolve cases involving threats to life and limb, I have to ask for evidence before considering that.

Moreover, why the fuck is arbitration inappropriate for handling "negligent retention" claims, or "negligent supervision" claims?

She asked for safer housing, repeatedly, and they refused to provide it. She was then drugged and gangraped, an event which would have been prevented had they not been negligent in supervision.

Since these arbitration claims require silence, she did not know about this practice until some time after she needed reconstructive surgery.

That this got wrapped up in a package of silence while women were beaten, drugged, tortured in raped is a perfect example of why arbitration should have no place in this sort of dispute.

[Master of Ossus]

That does not magically make them enforceable.

So you're saying that indemnification clauses are unenforceable if they raise the standard of negligence required? Evidence?

You don't appeal arbitration decisions, you get them vacated. Essentially, getting the arbitration vacated under those terms means that that specific arbitration should never have taken place, for whatever reason.

To quote the valid reasons for vacating an arbitration:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

Which of those clauses would she have been able to find cause for vacation under, that does not bring up the question of why arbitration is allowed in the first place?

Fair enough. If she can't show one of those, why are we saying that arbitration is so unconscionable? After all, they work everywhere else.

If you are going to claim that arbitration was designed to resolve cases involving threats to life and limb, I have to ask for evidence before considering that.

I'm claiming that it's applicable to such cases: it's a method for resolving legal disputes, and "threats to life and limb" involve legal disputes.

She asked for safer housing, repeatedly, and they refused to provide it. She was then drugged and gangraped, an event which would have been prevented had they not been negligent in supervision.

Since these arbitration claims require silence, she did not know about this practice until some time after she needed reconstructive surgery.

That this got wrapped up in a package of silence while women were beaten, drugged, tortured in raped is a perfect example of why arbitration should have no place in this sort of dispute.

Oh, I see. So it can't possibly be overbroad because these are all elements that are vaguely applicable to this particular case. Genius.