They get to rape with impunity. And their punishment is arbitration.
Ms. Kineston is among a number of American women who have reported that they were sexually assaulted by co-workers while working as contractors in Iraq but now find themselves in legal limbo, unable to seek justice or even significant compensation.
Many of the same legal and logistical obstacles that have impeded other types of investigations involving contractors in Iraq, like shootings involving security guards for Blackwater Worldwide, have made it difficult for the United States government to pursue charges related to sexual offenses. The military justice system does not apply to them, and the reach of other American laws on contractors working in foreign war zones remains unclear five years after the United States invasion of Iraq.
KBR and other companies, meanwhile, have required Iraq-bound employees to agree to take personnel disputes to private arbitration rather than sue the companies in American courts. The companies have repeatedly challenged arbitration claims of sexual assault or harassment brought by women who served in Iraq, raising fears among some women about going public with their claims.
But American female employees at least have some recourse, however inadequate. There hasn’t been much talk about Iraqi victims of contractor violence (sexual and otherwise), but it is certainly an ongoing problem. Contractors aren’t subject to military, American or Iraqi law — meaning that they can pretty much do whatever they want without legal consequences. Their assaults on fellow employees are only the tip of the iceberg.
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My understanding was that the arbitration was between the company and the rape victim, not between the rape victim and the rapist. If that’s the case, the rapist isn’t being punished at all. When they refer to “personnel disputes,” they mean employer-employee disputes, I believe.
Please correct me if I’m wrong.
Contractors aren’t subject to military, American or Iraqi law
That’s an unforgivable state of affairs. Thank you CPA order 17!
-Iraqi courts can’t touch them because of Order 17.
-International courts can’t touch them because, well, even before Bush Jr., we weren’t in the habit of accepting international jurisdiction. Unless I’m mistaken, we’re not even members of the International Criminal Court.
-Local courts can’t touch them because they haven’t violated any American laws, since they weren’t on American soil.
The military pretty much *always* enjoys that kind of protection- crimes by soldiers in foreign lands are almost never punished by the laws of that country. Instead, they’re punished by military tribunal. Unfortunately, civilians can’t be punished by a military tribunal. You can’t court-martial a civilian contractor.
There’s a tiny ray of hope, though- according to this article out of Yale, attempts by Bush to exempt civilian contractors from punishment on foreign soil aren’t actually legal unless Congress signs off on them, even as the Bushadmin push the Iraqi government to do exactly that.
I can’t even imagine how horrifying it would be to be the victim of a vicious assault, only to realize that there wasn’t any recourse because your attacker was completely unrestrained by any laws. Talk about disempowering.
Astraea, I’m a litigator, and since I don’t know any of the answers, I’ll pose some questions:
An employee who was raped by another employee of a contractor, in theory, has a claim against the rapist. Where is the proper venue for that case? I’m not sure what law applies to her civil case, or what court should hear it. (She may well be able to sue in the state court where she lives inthe US, but each state has its own choice of law rules, which would pose really sticky questions). Assuming she brings the claim in a US court somewhere, do the joinder rules require her to bring her claim against the company at the same time or else waive it? Or will the employee pull the employer into the case? If the employer is in the case, does the arbitration clause force the entire thing, including her case against the rapist, into arbitration?
(These questions are all first-year Civ Pro. Knowing the answers to these questions requires actual research and depends on things like what each state’s law is on joinder and arbitration; I’m not willing to wing half-assed “most likely” opinions on this. Except one. In New Jersey, she’s got a case regardless of the facts, because New Jersey courts will hear any case that will keep New Jersey lawyers employed and keep disputes on their side of the Hudson. Just kidding, except it’s dangerously close to the truth.)
It seems to me that she probably faces a bad choice: If she can bring a claim at all against the individual, he may be “judgment proof,” i.e. he may not have enough money to make a money judgment against him meaningful. So she’ll want to sue the employer, too, if they did something wrong, because they can pay. But her claim against them may force the whole thing into arbitration, where she has fewer rights. So she may have to choose between a symbolic victory of justice but no money, and a kangaroo court arbitration where the company has tremendous advantages.
If it were in my power, I’d hold that arbitration agreements covering any kind of liability for rape were void as against public policy.
No, you’re right. My use of the term “punishment” was sarcastic — there’s no punishment at all. The rapist, as I understand it, usually has to participate in some way in the arbitration (giving their side of the story, at least), but that’s it.
Jill, thanks for clarifying. Sometimes the sarcasm goes over my head after a long day! But I figured either way you knew what you were talking about.
Thomas, that makes sense. The whole situation is sickening and I completely agree about arbitration agreements.
I’ve done some arbitration in my time, and Astrea’s right — it’s based on contract between the employer and employee, not between the employee and the rapist. The one good thing about it is that, unlike in other kinds of employment claims, claims based on Title VII, which this most assuredly would be, are arbitrated with the same substantive law and penalties available to plaintiffs in federal court. IOW, you can waive your contract rights, but you can’t waive your civil rights by agreement.
The real issue is whether the employee can find a forum for a suit against the rapist. She has to arbitrate — caselaw holds that an agreement to arbitrate is valid and enforceable if the dispute falls within the arbitrability clause (and a company like this will have an exceedingly broad one) — but her claim against the rapist personally probably falls outside the scope of that agreement. But which court would have jurisdiction?
And to clarify, when I say “a suit against the rapist,” I mean a civil suit. It’s pretty clear that these contractors and their employees are protected from criminal prosecution.
I wonder what would happen should one of these rape victims kill her attacker. I bet they’d find plenty of applicable law to prosecute her with.
Zuzu, suppose she’s domiciled in a state that recognizes her claim against the rapist and, in the absence of clear applicable law for the location of the events, applies its own. If her state has mandatory joinder requiring her to bring all of her claims arising from a common nucleus of operative facts in the same case, does she have to move the whole thing to arb? If she doesn’t join the contractor, does she waive the arb? Can the rapist implead the employer and bootstrap himself into the arbitration?
See, I would bet sooo much money that the same folks who would be all for these contractors having immunity in Iraq would be spitting feathers at the idea of OMG DISGUSTING SHARIA LAW non-binding opt in arbitration mechanisms in the US and UK.
Ironic, much?
What Hector B. said.
You have to wonder what’s going to happen to the woman who retaliates against her attacker.
What I’ve usually seen is that the federal suit is stayed pending the arbitration, or the arbitrability issue is decided first, and any arbitrable claims are referred to arbitration. There’s a pretty strong policy in favor of arbitration.
Federal courts *do* have jurisdiction under the Federal Arbitration Act to vacate, modify or confirm an arbitration award, though the standards for vacation or modification are pretty high. Usually, “manifest disregard of the law or facts” is required.
I guess as a practical matter almost any judge would stay the non-arbitrable part while the arb went on, because it is the approach most likely to save them a lot of work; and since discovery rules in employment arb are not bad (unlike, say, securities arb, where discovery obligations have often been honored in the breach), I suppose her procedural rights would be fairly well protected.
Thanks, Zuzu!
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