Does your Senator love (shielding government contractors from prosecution for abetting) rape?

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Tdc2182

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my senator hasn't raped anyone but my exsuperintendant is in jail for sex to minors, look him up, Thomas Rogers tucson arizona. I also noticed the man who almost ot elected president voted nay.
 

Alex_P

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Mar 27, 2008
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mspencer82 said:
Might be helpful if the thread title didn't imply something else. Also, saying "A 'Nay' vote is a vote for rape." kind of makes your position a little unclear.
Better?

-- Alex
 

jboking

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Alex_P said:
While I do hate Kit Bond(one of my senators) I mildly feel like there was more to this legislation. Even if the reason is purely economic, I would like to know what made people like Bond vote against this.
 

Seldon2639

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DeathWyrmNexus said:
At spec, there's no sane person who wouldn't agree with you. The government doesn't allow for certain rights to be consigned under any circumstance, contract or no. Short, plausible, concise, and completely missing the point. Anything in law in a question of (a) propriety, and (b) cost-benefit analysis. If we accept that we should never be allowed to sign away the right to litigation, the fallout is a bit more broad than just this one case.

For instance, carnival waivers would no longer exist. Not to mention that most work contracts would become a lot more onerous. And, not for nothing, but once again: why is it the government's job to say (aside from in the most abjectly extreme circumstances) you aren't allowed to make this choice of what to do with your body/life/work?

Where are the pro-choice and/or decriminalization people when the choice people are making is one they don't agree with? There's nothing wrong with binding arbitration in and of itself, so I find the argument that it rises to the level of "I can't sell my body into slavery" specious.

Alex_P said:
With the sharp increase in contractors providing field support and private military services, we increasingly face situations where contract workers operate in situations of danger and lawlessness. Just as the government has always mandated strict standards for security and labor accounting for firms that engage in research and manufacturing back home, it now needs to manage the safety and conduct of contractors overseas. Previously, it could rely on the normal laws that all US corporations follow to do this stuff; it's hard to enforce those in a warzone, which is where more and more contractor operations are happening. Should the government suspend the Uniform Code of Military Justice to try to save some money, too?
Once again, you're conflating two issues. I have absolutely no problem with saying "they have to have rigorous safety protocols to prevent raping and pillaging". That's not the issue. The question isn't "should they prevent rape", it's "should the government disallow the use of binding arbitration in contracts". If you want to have a real conversation on the merits, please don't confuse and align the two as being in any way intimately related. There exists no privity between "rape is bad" and "binding arbitration is something we shouldn't allow". I even have no problem with prosecution of these crimes. I said that in my post. But the bill in question (a) does nothing for this case (since it can't apply ex post facto), (b) does bugger all to actually enforce lawfulness in Iraq for the PMCs, and (c) is a massive overreaction of misdirected rage.

I'll say again: demand prosecution. Attack the U.S Attorney's office as being unscrupulous or asleep at the switch. Demand stricter protocols. But why in the world are you categorically removing the ability to have binding arbitration? Do we think the rapists studied her contract and said "well, if we do this, there's less likelihood we'll be tried or convicted"? And, oh, by the way, the civil suit was not for the rape charges themselves (which as you noted were criminal) but were rather for negligence. But if you're a construction worker, and lose your arm, your negligence claim goes through binding arbitration too. So do my insurance claims... What makes her claim of negligence (in terms of the law, rather than a high-minded emotional reaction) more worthy of protection?

Alex_P said:
The position that setting limitations on contracts encourages "foolishness" is absurd. Where's the benefit in a system that allows a business deal to invalidate basic rights, exactly?

People like to imagine that a world of contracts in place of laws will free us to make our own decisions. Quite the opposite: it'll chain us up and drug us down. Unrestricted contracts create a situation where each and every transaction can generate its own body of law, utterly stripping citizens of their ability to understand the law or engage with it.

-- Alex
Nice dodge, dude. I'm serious, I've done it before, and this is impressive. You not only take my argument to the illogical extreme, but you put words in my mouth, but you do so in a way that makes it sort of sound like I did say it. That's well done.

I don't believe a business deal should be able to invalidate a basic right. But you assume without evidence that litigation is a basic right. I agree that bringing a grievance is a basic right, but when other administrative procedures exist (like, say, arbitration) why is "litigation" a "basic right"? Until we suss out whether litigation is a basic right (hint: the Supreme Court says it's not, and will (I hope) smack this law down so hard it'll make your head spin).

I also never brought anything close to the 1984-esque argument you apply to my premises. You do know, incidentally, that an entire body of law exists to govern contracts, right? It's called, unsurprisingly, "contract law". I don't want contracts to exist in lieu of the law, but a balance must be struck between an individual's right to make decisions (even poor ones) and the necessity of the government stepping in to prevent certain rights from being lost.

Where you draw that line is a question both of principle and of practicality. But until you're willing to put aside your rhetorical devices, appeals to emotion, and bald declarations of categorical fact (without providing any basis in evidence, law, or logic), we can't actually have a discussion of the principles or practicality.

I await, eagerly perhaps, the time when you're willing to discuss these issues on the merits, rather than as emotional slams.

And, oh, by the way:

Why in the world do you think that "they can have binding arbitration" is the same as "shielding" anyone? Look at the actual stats from binding arbitration (for instance, in the MLB). The arbitration officer is equivalent to a judge, and the decision is (as the name implies) binding on all parties. If the woman was likely to win in court, what evidence can you provide to imply that she would lose at arbitration?

Binding arbitration is not a "win" for the employer. It often is to the benefit of the employee (as it costs less than court). This, in point of fact, is why many unions insist on it being in their contracts. So, how about we discuss the issue in a less inflammatory way?
 

mshcherbatskaya

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I wouldn't be at all surprised to find out that the Nay-voters have these military contractors in their districts.
 

Alex_P

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Seldon2639 said:
Once again, you're conflating two issues. I have absolutely no problem with saying "they have to have rigorous safety protocols to prevent raping and pillaging". That's not the issue. The question isn't "should they prevent rape", it's "should the government disallow the use of binding arbitration in contracts". If you want to have a real conversation on the merits, please don't confuse and align the two as being in any way intimately related. There exists no privity between "rape is bad" and "binding arbitration is something we shouldn't allow". I even have no problem with prosecution of these crimes. I said that in my post. But the bill in question (a) does nothing for this case (since it can't apply ex post facto), (b) does bugger all to actually enforce lawfulness in Iraq for the PMCs, and (c) is a massive overreaction of misdirected rage.
KBR/Haliburton has used arbitration to squelch a pattern of sexual assault among its employees. Knocking this stuff out into the open is rather important if you're actually going to deal with it.

The 5th Circuit, which ruled on Ms. Jones' case, has already made a decision that sexual assault, battery, and false imprisonment can't be forced into arbitration. Far from a "massive overreaction", the amendment was an attempt to build on that decision in a narrow and targeted way. A "massive overreaction" would be more like turning this whole thing into a giant bill with its own hundred pages of rules, loopholes, and pork.

Seldon2639 said:
What makes her claim of negligence (in terms of the law, rather than a high-minded emotional reaction) more worthy of protection?
Government contractors have always had to live up to higher standards than regular ol' corporations. It's necessary because of the sensitive nature of their work.

Seldon2639 said:
I don't believe a business deal should be able to invalidate a basic right. But you assume without evidence that litigation is a basic right. I agree that bringing a grievance is a basic right, but when other administrative procedures exist (like, say, arbitration) why is "litigation" a "basic right"? Until we suss out whether litigation is a basic right (hint: the Supreme Court says it's not, and will (I hope) smack this law down so hard it'll make your head spin).
Sexual assault, assault and battery, and false imprisonment all represent violations of basic rights. Given the way person-to-company arbitration favors the business, settling those claims in arbitration is tantamount to signing your protections away. (The false imprisonment was perpetrated by someone acting on behalf of the company, not ones of the rapists.)

-- Alex
 

Davic

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I live in Australia, have took legal studies as a subject in my final year of school. In Australia, any contract that contains an illegal act (for example, impeding justice) is void.

Since this is a US thing, I'm obviously not represented by any of those senators. Luckily, though, here that case wouldn't stand up. At all.
 

manaman

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I changed my mind. I was going to argue something or other in this space. Sorry to bother everyone that reads it now. But I decided it was not really worth it. I don't want the quotes from people that will misunderstand my position.
 

dalek sec

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Jul 20, 2008
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Zetona said:
For all the political craziness in New Jersey at the moment, at least our senators voted Yea.
Yeah really, they might be crooked as hell but atleast they're anti-rape.
 

LongAndShort

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May 11, 2009
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Thirty more names for my hit list. Thanks for telling me, without this i may not have known and these guys would have avoided it.
 

Seldon2639

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Alex_P said:
KBR/Haliburton has used arbitration to squelch a pattern of sexual assault among its employees. Knocking this stuff out into the open is rather important if you're actually going to deal with it.

The 5th Circuit, which ruled on Ms. Jones' case, has already made a decision that sexual assault, battery, and false imprisonment can't be forced into arbitration. Far from a "massive overreaction", the amendment was an attempt to build on that decision in a narrow and targeted way. A "massive overreaction" would be more like turning this whole thing into a giant bill with its own hundred pages of rules, loopholes, and pork.
The government can overreact (and even do some really silly things) without anything have to do with pork, or hundred-page bills. Massive just means scope, not the length of the bill. Your claim that there is a pattern of sexual abuse which has been "squelshed" through arbitration (odd, since arbitration is done in front of an unbiased officer (often a judge) and is often to the benefit of the employee) is unsubstantiated by any evidence you've provided. I don't disagree that sexual assault, battery, and false imprisonment can't be forced into arbitration, but that's also not really what the bill says. There's a difference between "sexual assault" and "negligence" or "abetting". The sexual assault claims (which are criminal in nature, and directed at the perpetrator himself), have nothing to do with arbitration with the company. She wants punitive damages to the company for tort claims.


Alex_P said:
Government contractors have always had to live up to higher standards than regular ol' corporations. It's necessary because of the sensitive nature of their work.
That's confusing the issue again. Higher standard is fine. Make them put in more safeguards, sure. Force them to be more careful in watching, fine. What does that have to do with binding arbitration? Arbitration only (and I can't stress this enough) deals with civil liabilities


Alex_P said:
Sexual assault, assault and battery, and false imprisonment all represent violations of basic rights. Given the way person-to-company arbitration favors the business, settling those claims in arbitration is tantamount to signing your protections away. (The false imprisonment was perpetrated by someone acting on behalf of the company, not ones of the rapists.)

-- Alex
Once again, you're misstating my position. I accept that one cannot give permission to be sexually assaulted, assaulted, or falsely imprisoned. But there's a difference between the criminal and tort components of that. Criminal violations are still handled by the court (they can't be consigned to arbitration), the only thing you can consign is your right to civil litigation (she can't sue for damages).

Even assuming (arguendo) that arbitration provides a shield for strict liability, it does nothing for criminal charges. The only thing in question is tort claims, not criminal claims.

But, your claim that "person-to-company arbitration favors the business" is unfounded. Look at MLB, and the astonishingly high rate at which arbitration favors the player. Look at any union's dealings with company. I've seen no evidence that this arbitration "favors" the business.

Argue whether she should be allowed to sue for damages (i.e get lots of money) for what happened. Don't bring in irrelevant questions about whether criminal statutes still apply.

This bill will do nothing to protect women, and simply make the entire process of obtaining defense contractors more onerous. Fortunately, if the House has any testicular fortitude, they can fix it in conference committee
 

Alex_P

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Mar 27, 2008
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manaman said:
I at least can hold out judgment until I can find the particulars on this issue.
I read the text of the amendment (it is short).
I read Franken's justification for the bill.
I looked over what snippets of Simmons' response I could find.
Fuck, I just looked it up on the Fox News website and our much-loved local Moonie Times to see what the counter-spin was -- they got nothin', as far as I can tell.
I stand by my agitprop: these guys are quite okay with rape.

-- Alex
 

SamuraiAndPig

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I have a feeling that Republicans voted 'no' on this simply because they want to avoid possible government involvement in company affairs. It's a tradition going back to Reagan that Republicans support "free market," meaning that business and government are two separate things. What it really comes down to is regulation, or in this case, the lack thereof.

Seldon2639 said:
Even assuming (arguendo) that arbitration provides a shield for strict liability, it does nothing for criminal charges. The only thing in question is tort claims, not criminal claims.
You're forgetting that there was a contract involved. If you remember the AIG bonuses, one of the guiding principals of government/corporation relationship in this country is that a contact is binding. The the case of AIG, before the economic collapse, certain employees were given contracts for X amount of dollars upon Y event, specifically, hiring and severence packages. Which is why even though the government gives them bailout money which they mishandle, the government isn't in much of a position to do anything about it. Sure, they could sue, but it would be years in court and make the government look like blundering idiots who didn't know what they were pumping money into.

The employee in this case signed a contact that stated sexual assualt cases were to be handled by in-company arbitration. Since there's not much data on that I'm going to assume this makes it more difficult to file criminal charges, which is why she's suing in civil court. Pressing criminal charges would violate the contract and get her fired.

At it's core, the bill wants companies to allow employees to press criminal charges on co-workers/superiors without the risk of losing their job, which is kind of moot because you'd be fired anyway and wouldn't get your job back until after the trial, which could take years.
 

Seldon2639

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Cheeze_Pavilion said:
I don't think Alex made any such categorical statement--I think you just misunderstand the state of the law.
I can promise you I read the full text of the amendment (and I wonder whether Alex has as well), which provides that no money go to contractors who have binding arbitration of "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."

I'm no big-city attorney (just a relatively medium city law clerk), but that's the vast majority of all claims against an employer. The only other major ones would be breach of contract and wrongful termination

Cheeze_Pavilion said:
A long time ago:
http://en.wikipedia.org/wiki/Contract_of_adhesion#Contracts_of_adhesion
Uh... Not really. Read your own Wiki cite: "For a contract to be treated as a contract of adhesion, it must be presented on a standard form on a ?take it or leave it? basis, and give the purchaser no ability to negotiate because of their unequal bargaining position"

This didn't exist here, and is thus irrelevant. There is no evidence of an unequal bargaining position, nor is it relevant to my question of why the government would be in the business of preventing me from making poor decisions. It can hold unenforceable decisions made under duress, but that's an entirely different question

No, you cannot:
http://chestofbooks.com/business/law/Handbook-Law-Of-Contracts/Agreements-Contrary-To-Public-Policy.html
I guess all those reality shows I've watched have been really illegal. And a lot of porn, too. The use of this statute (like that of "outrageous conduct") in caselaw requires an act so beyond the pale as to be patently disgusting. Being attacked by dogs isn't there.

You've just answered your own question--see, if you sue the employer for negligence for allowing another employee to hurt you, guess what: that's way more effective in preventing future crimes than maybe even criminal prosecution--the employer will take the steps that will reduce the chances of this happening again if they know they'll face financial penalties.

http://en.wikipedia.org/wiki/Tort#Vicarious_liability
It has to be actions taken "in the course of the employment" (seriously, your own wiki citation). Rape is not an action taken in the course of employment, and thus cannot be a tortuous offense by the employer. Failure to properly clean a floor is a failure of the employment responsibilities "failure to not rape" isn't. That's the difference.

And, not for nothing, but you're ignoring the fact that arbitration is not a "get out of jail free card". You're applying a schema that says "if it's arbitration, the employer gets off scot free" and that's simply untrue. See, arbitration isn't the company saying "here's what we'll give you". It's an objective agent (often a former judge) looking over the incident and saying "this is what's fair"


Maybe before telling someone else they need "to put aside your rhetorical devices, appeals to emotion, and bald declarations of categorical fact" and be snarky about "that an entire body of law exists to govern contracts, right?" you should at least know enough about it that you're not making statements that could not be more wrong and then telling other people they aren't "providing any basis in evidence, law, or logic"?
I'm pretty sure I could make statements that are more wrong, and (in this case) made statements entirely in line with even those citations you purport to prove me incorrect. Perhaps before claiming someone to be "making statements that could not be more wrong" you ought to confirm they actually are. You also really ought to cite things in context, rather than using them to make implications wildly outside of their original meanings. For instance, that last little quote you pulled out was specifically in reference to the lack of any cited source by Alex. He doesn't provide any basis for his claims. You, to your credit, at least made an attempt.

But, we've also both (and I accept responsibility in part) moved far out of the realm of any kind of sane discussion. This has become snarky on both sides, and somewhat personal. It would be best to either take a breather from the argument (as I'm about to) or perhaps cite irreconcilable differences, and leave it as a disagreement.
 

DeathWyrmNexus

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Seldon2639 said:
At spec, there's no sane person who wouldn't agree with you. The government doesn't allow for certain rights to be consigned under any circumstance, contract or no. Short, plausible, concise, and completely missing the point. Anything in law in a question of (a) propriety, and (b) cost-benefit analysis. If we accept that we should never be allowed to sign away the right to litigation, the fallout is a bit more broad than just this one case.

For instance, carnival waivers would no longer exist. Not to mention that most work contracts would become a lot more onerous. And, not for nothing, but once again: why is it the government's job to say (aside from in the most abjectly extreme circumstances) you aren't allowed to make this choice of what to do with your body/life/work?

Where are the pro-choice and/or decriminalization people when the choice people are making is one they don't agree with? There's nothing wrong with binding arbitration in and of itself, so I find the argument that it rises to the level of "I can't sell my body into slavery" specious.
They fucked up her rape kit and stuffed her in a cargo container... I would call that breach of contract.

They aren't settling it out of court, ergo they have reneged on their end of the contract. Breach of Contract, all bets are off. So, how about you read the opening post. She can bring charges up on them for not honoring the contract in a timely manner. It doesn't take a year to handle her problem.

And yes, I am for our government removing the right for companies to put in a hamhanded clause to fistfuck people. Which is what her company did. They aren't doing a damn thing and rape is a far cry from your carnival ride example. On the level of fucked up, rape is closer to slavery than it is to a carnival ride.

Besides, if the contract isn't going to be honored in a reasonable fashion and timeframe, it shouldn't be allowed to be part of it. She didn't go on a carnival ride. She went to do a job and was raped. While you can waive your right to sue, you can't waive your right to have your crime followed up on.
 

Seldon2639

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SamuraiAndPig said:
You're forgetting that there was a contract involved. If you remember the AIG bonuses, one of the guiding principals of government/corporation relationship in this country is that a contact is binding. The the case of AIG, before the economic collapse, certain employees were given contracts for X amount of dollars upon Y event, specifically, hiring and severence packages. Which is why even though the government gives them bailout money which they mishandle, the government isn't in much of a position to do anything about it. Sure, they could sue, but it would be years in court and make the government look like blundering idiots who didn't know what they were pumping money into.

The employee in this case signed a contact that stated sexual assualt cases were to be handled by in-company arbitration. Since there's not much data on that I'm going to assume this makes it more difficult to file criminal charges, which is why she's suing in civil court. Pressing criminal charges would violate the contract and get her fired.

At it's core, the bill wants companies to allow employees to press criminal charges on co-workers/superiors without the risk of losing their job, which is kind of moot because you'd be fired anyway and wouldn't get your job back until after the trial, which could take years.
I don't mean to sound condescending, and so I do apologize if anything in the following comes across as snide or snarky.

You're incorrect. Pressing criminal charges wouldn't get her fired, because arbitration can only deal with claims lying in contract or tort (civil claims). You're conflating the two issues. And, no, a contract stating that tort claims can't be brought outside of arbitration would not make it more difficult to bring criminal charges. Finally, pressing criminal charges would not violate the contract itself.

If you were correct, the contract would be void on its face, and no new bill would be necessary. The text of the bill is telling of the fact that it deals only with claims sounding in tort: it provides that provides that no money go to contractors who have binding arbitration of "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."

A tort claim is only a civil claim (that's really all it is). So, even if you're correct, this bill would do nothing to protect from arbitration agreements regarding criminal cases. It's just about the civil claims. Criminal claims could have been filed by the U.S Attorney at any time.
 

Seldon2639

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DeathWyrmNexus said:
They fucked up her rape kit and stuffed her in a cargo container... I would call that breach of contract.

They aren't settling it out of court, ergo they have reneged on their end of the contract. Breach of Contract, all bets are off. So, how about you read the opening post. She can bring charges up on them for not honoring the contract in a timely manner. It doesn't take a year to handle her problem.

And yes, I am for our government removing the right for companies to put in a hamhanded clause to fistfuck people. Which is what her company did. They aren't doing a damn thing and rape is a far cry from your carnival ride example. On the level of fucked up, rape is closer to slavery than it is to a carnival ride.

Besides, if the contract isn't going to be honored in a reasonable fashion and timeframe, it shouldn't be allowed to be part of it. She didn't go on a carnival ride. She went to do a job and was raped. While you can waive your right to sue, you can't waive your right to have your crime followed up on.
I completely agree. But, remember, all we're talking about is the civil claims against the company. The bill provides that no money go to contractors who have binding arbitration of "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."

The criminal offenses (of which there appear to be many) are irrelevant to the conversation at hand. Sue for breach of contract, sure. Go through arbitration (which, again, isn't a free pass for the company). I even agree they welshed on their markers. But that's not what the amendment is about.

The full text:

"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."

Not to be too blunt or rude, but:

THIS IS ALL CIVIL LAW.

The rape is irrelevant to the law itself, and to become emotional about the fact that the tort in question blurs the question.

Edit: If a mod sees this: I reported my own post, since I think we may need to lock this thread. It's quickly becoming more emotionally charged than probably anyone wants it to be, and we may be moving over into less-than-polite-thus-banhammer territory