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

[Aitruis]

As much as I do not care for the Arizona legislation for entirely unrelated reasons, I can't really fault them here.

OP, you did a good thing by posting the data source, that being the Senate home site, which has a direct link to the bill itself.

Unfortunately, out legislation does not make passing simple items easy. This bill contains everything from Department of Defense spending limits to giving away Air Force surplus. As unfortunate as it is, the rape issue is only one of near a hundred separate items on the bill.

That being said, the thread is a bit one sided. Just because those particular senators voted no probably doesn't mean they like raping at every opportunity. For all I know, one of the spending provisions could have let the DoD keep our soldiers there indefinitely, or something equally as ludicrous. I only skimmed it.

Point being, it's rather silly to point fingers at anyone voting because of one item on the bill. The whole thing has to be taken into consideration if one wants anything resembling a worthwhile opinion on the topic.

 

[SamuraiAndPig]

It's just about the civil claims. Criminal claims could have been filed by the U.S Attorney at any time.

Obviously, but why weren't they? The short answer is that going after a company like Haliburton in criminal court is about as useful as banging your head on the wall. The way I see it is that a company has a contract that requires civil arbitration in a sexual harassment case to build it's case if criminal charges were filed. I never said the contract prevents criminal charges, only hinders them. Imagine how stupid you would look pressing charges on someone for an issue that you'd already been paid for by the company. As you said, this is all speculation since we'll probably never see said contract, but if I were Haliburton, that's what I'd do. As screwed up as it is, this is just about the money - getting paid for emotional trauma.

Addition: don't worry about coming off as snarky. I'm a debate team nerd so I enjoy this sort of thing.

 

[Alex_P]

Unfortunately, out legislation does not make passing simple items easy. This bill contains everything from Department of Defense spending limits to giving away Air Force surplus. As unfortunate as it is, the rape issue is only one of near a hundred separate items on the bill.

Amendments are voted separately.
S.A. 2588 is literally just those two paragraphs from the Senate site. That is the only thing that vote covered.
The bill it amended, H.R. 3326, passed 93-7 [http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=111&session=1&vote=00315].

-- Alex

 

[Seldon2639]

It's just about the civil claims. Criminal claims could have been filed by the U.S Attorney at any time.

Obviously, but why weren't they? The short answer is that going after a company like Haliburton in criminal court is about as useful as banging your head on the wall. The way I see it is that a company has a contract that requires civil arbitration in a sexual harassment case to build it's case if criminal charges were filed. I never said the contract prevents criminal charges, only hinders them. Imagine how stupid you would look pressing charges on someone for an issue that you'd already been paid for by the company. As you said, this is all speculation since we'll probably never see said contract, but if I were Haliburton, that's what I'd do. As screwed up as it is, this is just about the money - getting paid for emotional trauma.

Addition: don't worry about coming off as snarky. I'm a debate team nerd so I enjoy this sort of thing.

You wouldn't come off as silly at all. Most criminal litigation of this nature also includes civil litigation. The judge would never allow any evidence or testimony to be entered into the record regarding previous payments. The judge would instruct the jury to solely find on the question of whether a rape occurred.

 

[Alex_P]

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?

Confidential arbitration allows a company to hide a pattern of misconduct. Ms. Jones wasn't the only person victimized by her co-workers while providing services to the US government in Iraq.

Contractors working overseas operate in a deep legal grey area, so civil litigation is pretty much everything here. The Bush White House carefully carved out a niche of exclusion -- no local law, no UCMJ -- while leaving their actual criminal liability intentionally vague and generally dissuading the DOJ from prosecution; the Obama administration's DOJ has generally kept the same course.

-- Alex

 

[Roxilla84]

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.

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.

Which is not the way things should be done. Rape is too under-reported a crime; one out of four of all women experience sexual abuse but fewer than 15 percent of rapes end in a conviction. The government SHOULD regulate businesses when it comes to protecting women from the fallout of rape.

 

[Seldon2639]

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?

Confidential arbitration allows a company to hide a pattern of misconduct. Ms. Jones wasn't the only person victimized by her co-workers while providing services to the US government in Iraq.

Contractors working overseas operate in a deep legal grey area, so civil litigation is pretty much everything here. The Bush White House carefully carved out a niche of exclusion -- no local law, no UCMJ -- while leaving their actual criminal liability intentionally vague and generally dissuading the DOJ from prosecution; the Obama administration's DOJ has generally kept the same course.

-- Alex

That's two separate issues. I can agree completely that there should have been prosecution (and even should be, if they were criminally negligent), but the arbitration if done in a legal (fair) manner would not have allowed the company to get off scot free. If there was a pattern of abuse, they can be found criminally negligent, and punished with the full force of law.

My disagreement is that allowing arbitration to be mandatory isn't the problem. Even excluding the fact that no person is forced to sign a contract with these people, arbitration functions much the same was as a bench trail. In the same way, no prior trial evidence would be admissible in the record. A pattern of abuse has to be tried separately from the torts.

Get rid of the grey area, prosecute more, enforce stricter protections, I can get behind all of these. Upending a basic premise of much of contractual employer-employee relationships doesn't seem like a sane response. I believe that this plan will come back to bite us in the ass, but I suppose we'll see.

Nonetheless, can we agree that the people who voted against this bill has (much in the same vein as my arguments here) a legitimate reason to disagree with the right honorable Mr. Franken? Even if you disagree with their vote, can you accept that it has less to do with a desire to "shield" these companies (since arbitration, as stated, isn't itself a shield) and more to do with not wanting to interfere with legitimate contractual agreements?

 

[Seldon2639]

Which is not the way things should be done. Rape is too under-reported a crime; one out of four of all women experience sexual abuse but fewer than 15 percent of rapes end in a conviction. The government SHOULD regulate businesses when it comes to protecting women from the fallout of rape.

Like I said in my response: there would be no fallout from reporting rape to a government agency, much less from a prosecution. Whistleblower laws would protect such actions (independent of anything else) and the arbitration portion of the contract only applies to civil claims.

But, I do take some issue with your statistics. Sexual abuse is a pretty wide field of crimes (indecent exposure, technically, is a form of sexual abuse), so what you said is a bit like saying "one in four people will be victims of violent crime, but only 15% of murders are ever solved". Technically true, but a bit meaningless in context. I agree that more rapes should end with the right person going to jail, but it's difficult to prove. If the woman doesn't get tested for date rape drugs relatively quickly, they wash out of her system. Without DNA evidence, it's hard to prove, and the impression in society of the prevalence of false rape accusations doesn't help anything.

I have nothing except sympathy for victims of rape, and I believe the impression that women will cry rape for really silly reasons (she didn't like it/doesn't really like him/doesn't want to be thought of as actually liking sex) is itself mistaken, but I don't think that regulating business practices will help to raise the number of proper convictions for rape (or any other sexual abuses).

 

[SamuraiAndPig]

You wouldn't come off as silly at all. Most criminal litigation of this nature also includes civil litigation. The judge would never allow any evidence or testimony to be entered into the record regarding previous payments. The judge would instruct the jury to solely find on the question of whether a rape occurred.

Which is not the way things should be done. Rape is too under-reported a crime; one out of four of all women experience sexual abuse but fewer than 15 percent of rapes end in a conviction. The government SHOULD regulate businesses when it comes to protecting women from the fallout of rape.

Maybe I'm just cynical but I don't think it would play out that easily. I understand that the progression of cases would be determine if rape occured -> press criminal charges -> arranment -> hearing -> trial, but I don't think the cut-and-dry iron word of the law is the only thing in play. I assume this woman understands that filing a criminal charge is almost pointless. If none have been filed and this happened in 2005 it's impossible at this point - she'd be discredited just from the waiting time. And the judge would have to allow the evidence of past payment for a grievence because it invalidates the charge. I mean, it does largely depend on the judge, but to accuse someone of a crime after it has supposidly been resolved seems redundant. Why not skip that and press criminal charges to begin with? Why was that not done? We can all agree on how it should play out but that doesn't insure that it will. Even if it goes to trial as you said, a judge can tell a jury to strike a past payment from the record, but it still influences the jury - they are human after all.

Few rapes end in conviction because it's surpisingly difficult to prove rape. Physical evidence can prove a rape occured but that assumes the victim goes straight to the police. One of the first things you learn in rape prevention is that if you are raped, don't shower or pee because it destroys evidence. Next and more importantly are the psychological issues. The mind tends to block out traumatic events, in most cases, the face of an attacker. There's a reason why eyewitness account is considered the worst kind of evidnece. And finally there's the nature of reporting rape in the first place. If you're drunk at a party and have sex with someone while intoxicated, you *can* report it as rape, but it's not really the same thing. This isn't to say that a drunk girl is a free pass, but just that responsibility is shared.

Note: a possible condition to the above argument is that if criminal charges are pending and we the public are unaware of them. In that case, yes, it may go to trial, but the point stands.

 

[Alex_P]

That's two separate issues. I can agree completely that there should have been prosecution (and even should be, if they were criminally negligent), but the arbitration if done in a legal (fair) manner would not have allowed the company to get off scot free. If there was a pattern of abuse, they can be found criminally negligent, and punished with the full force of law.

You can't see the pattern if it's hidden by confidentiality agreements. The DOJ could pierce this veil but they're total ass-draggers on any "GWOT" issue as a matter of White House policy.

Even if you disagree with their vote, can you accept that it has less to do with a desire to "shield" these companies (since arbitration, as stated, isn't itself a shield) and more to do with not wanting to interfere with legitimate contractual agreements?

Given the extralegal quagmire in which contractors in Iraq are operating right now, I don't think sitting on your hands and doing nothing is a conscionable choice.

-- Alex

 

[Seldon2639]

There is no evidence of equal bargaining position, either, unless you're in possession of more facts than we have. In any case, obviously the Congress thinks differently than you.

I promise to respond more fully to your post when it's not 2:00 in the morning for me, but I wanted to respond to this in particular. You're making the positive claim. You have to prove inequity in order for the concept you want to apply to be shown to apply. I don't have to prove it *doesn't*. That's kind of how law (and debates) work. Besides which, I didn't know you assumed that if the Senate thinks something, it's automatically true.

This is an interesting legal argument, but we're only differing in interpretation of caselaw. I agree, if the arbitration is not actually legitimately unbiased, it would be invalid. But I never said otherwise. The question of an action being taken within the context of work is actually one I've been doing quite a bit of research on (admittedly in the 10th district), and we seem to have a much stricter sense of what constitutes being "related" to work. One employee raping another outside of direct supervision (i.e working hours) wouldn't stand up here, based on what I've read of the 10th circuit. But, I'll admit I've done less by way of sexual assault law, and more on wrongful termination.

Well then it's not categorical by any means--if there are two other major categories, that's not categorical.

Yes, that is the technical meaning of categorical, and I applaud you for knowing that. But its use in modern English (even in the OED) has less to do with "allowing for only one category" as "making a definitive statement and broaching no disagreement".

You're seriously going to compare porn and reality shows to signing a contract whereby you submit to being bit by dogs as far as "outrageous conduct"? The animal welfare angle alone pushes this beyond the pale.

Actually, I meant that I've seen reality shows in which people are attacked by animals. My point, however, was that unless something is so beyond the pale as to offend basic sensibilities (like, you can't make someone sign a contract with a gun to his head), it's not likely to stand up to being unequal enough negotiating. My analogy was misstated, and perhaps inapt, and that's my bad.

No, it's an agent who MAY be objective: whether or not the agent is objective is for the court to decide. If the agent is objective enough, the contract stands; if not and there are reasons like finding the contract to be one of adhesion, the court intervenes.

I think you're reading a bit much into what I'm saying to claim that I'm misrepresenting the law. Disagreement about interpretation of caselaw (which is kind of what lawyers do every day) is not "misrepresentation". You read a statement like "An employer may also be liable for the sexual misconduct of its employees toward customers or members of the public if it "knew or should have known" of the danger posed by the employee yet failed to take reasonable steps to prevent the assault or other misconduct from occurring" and view it as "he's wrong, see, the employer can be responsible", whereas what I said was that the question is one of how much supervision (i.e reasonable knowledge) is reasonable to apply to an instance. I assumed that you would interpret my statements in the ways they were intended, forgetting that the lens through which you're viewing my statements is far more adversarial than would allow for anything other than an exceptionally explicit recitation of my points.

But, I'd encourage you to read your last quotation a bit more carefully: "When the means of selecting the arbitrator fails, as here, the court noted that the trial court shall appoint the arbitrator". The court did not reject the contract, or even the binding arbitration qua binding arbitration, merely the process by which the arbitrator was selected. If the process is bad, a better process should be enforced, but that does not require that binding arbitration be verboten in these instances.

 

[Seldon2639]

Maybe I'm just cynical but I don't think it would play out that easily. I understand that the progression of cases would be determine if rape occured -> press criminal charges -> arranment -> hearing -> trial, but I don't think the cut-and-dry iron word of the law is the only thing in play. I assume this woman understands that filing a criminal charge is almost pointless. If none have been filed and this happened in 2005 it's impossible at this point - she'd be discredited just from the waiting time. And the judge would have to allow the evidence of past payment for a grievence because it invalidates the charge. I mean, it does largely depend on the judge, but to accuse someone of a crime after it has supposidly been resolved seems redundant. Why not skip that and press criminal charges to begin with? Why was that not done? We can all agree on how it should play out but that doesn't insure that it will. Even if it goes to trial as you said, a judge can tell a jury to strike a past payment from the record, but it still influences the jury - they are human after all.
[/quote]

You're assuming a lot more power to poison the well than actually exists in most litigation. Judges are very concerned about this, and do everything within their considerable power to prevent it. "And the judge would have to allow the evidence of past payment for a grievence because it invalidates the charge." No, not at all. If the judge did allow it, it'd be immediate grounds for appeal. The results of a civil trial are inadmissible in criminal proceedings, and the reverse is true. Same thing with (most) prior convictions.

The criminal component (sexual assault, rape, ect) and the civil component (negligence, intentional infliction of emotional harm, ect) are in no way linked. No judge worth being on the bench would allow the results (or lack thereof) of one to influence the other.

 

[Seldon2639]

You can't see the pattern if it's hidden by confidentiality agreements. The DOJ could pierce this veil but they're total ass-draggers on any "GWOT" issue as a matter of White House policy.

That's my point, though. No civil action could pierce that veil. Class action suits, maybe, but even if a string of women all brought suits, no individual suit could be influenced by any previous one. It'd be an automatic ground for appeal. And I do agree that prosecution should happen. But this amendment doesn't do anything helpful to that end.

Given the extralegal quagmire in which contractors in Iraq are operating right now, I don't think sitting on your hands and doing nothing is a conscionable choice.

-- Alex

See, and I'd prefer they sit on their hands than rush into a bad decision. We've done the "shoot from the hip" stuff before, and rarely does it benefit our country. I agree we should regulate. Make it safer, hold them to higher standards, but simply saying "you can no longer arbitrate, you must litigate" doesn't do that. Arbitration isn't any less costly to the company in the grand scale, and is more accessible to the employee. The actions being taken won't protect women any better.

 

[FallenJellyDoughnut]

All I can say is: That is fucked up.

 

[cobra_ky]

why doesnt it suprise me that everyone voted with their parties

:\

They didn't. Quite a few Republicans (every Republican woman in the Senate, for example) voted "Yea".

-- Alex

If this had been a Republican sponsored amendment, I bet we would have seen the same thing from democrats. it's the nature of our political system nowadays and it's a disgrace.

 

[stabnex]

I'll admit the reason I voted for Stabenow is cuz their name sorta sounds like "Stab Her Now". I'm glad I was able to contribute to this vote ^-^.

 

[Roxilla84]

Wow, thanks, twenty-five percent of the posts on this topic, I *had* been sort of optimistic about life, and now am back to misanthropy.