Woman gang raped by co-workers in Iraq eventually wins right to sue KBR

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Some may still remember that nasty case of a female KBR/ Halliburton employee who was gang raped by co-workers on July 28, 2005 at Camp Hope, Baghdad, Iraq. As if that wasn't bad enough, the company then treated her in a scandalous and shameful way: When she complained she was held captive in a shipping container for 24 hours, under armed guard. She was threatened to shut up or lose her job. Photos taken by her doctor after the rape and parts of the rape kit disappeared after they were taken away by KBR/ Halliburton security, depriving her of evidence against the offenders.

Her employment contract, developed under Cheney's rule at KBR/ Halliburton, prevented her from suing the company. Instead, she was forced into binding arbitration, a process that had resulted in redressal for only three employees out of 119 who had pursued grievances against the company (Suggesting that arbitration at KBR/ Halliburton is, uh, heavily rigged in favour of the company. Sounds like Cheney all right.).

Because the case happened in Iraq, outside US jurisdiction, the rapists weren't prosecuted in the US. When Jones contacted authorities the Mukasey Justice Department for years refused to charge those involved. Mukasey was being pressured on prosecuting the men, to no avail. Justice Department lawyers didn't even turn up for the congressional hearings on the matter:

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Now, Jones has, finally, won the right to sue KBR/ Halliburton, in civil court. Good for her, long overdue, and I hope she'll succeed and that the compensation will include a hefty punitive damage and help her start over anew. That still leaves the culprits unpunished.

After all that, there are two points that I chew on:

1. Civil Law and Mandatory Arbitration:
   The crime aside, what has struck me as obscene and outrageous was this: It is one thing to go through arbitration for civil law claims. It prevents unnecessary and expensive trials. It doesn't replace them. And crimes are a criminal law matter. It strikes me as outlandish that a company makes an employee sign a contract that prevents the employee from suing the company even for crimes being committed against the employee by other employees or superiors (like illegal restraint; possible theft/destruction of evidence; possible conspiracy to cover up a rape). And what when the arbitration fails to provide a mutually acceptable result? Then the employee first has to fight the contract before he can fight the violation?? How can something as one sided and unfair as that go unchallenged in court for about a decade or longer?
   .
2. Criminal Law and Juridiction:
   Under § 7 II Nr. 1 StGB (i.e. German criminal code) German nationals can be prosecuted in Germany for crimes they commit outside Germany, if the crimes are crimes in the country in question, or when there is no effective legal system to prosecute those crimes there. Under the same conditions, jurisdiction under § 7 I StGB exists when a crime is being committed against a German national. Arguably rape is a crime in Iraq as well, and obviously there was no effective legal system operating in Iraq (at the time of her ordeal contractors were immune to Iraqi and US law). That means a German prosecutor would have had to prosecute.
   
   I'd be unsurprised if a comparable rule exists in US law. Maybe one of the US lawyers can help out here?
   
   Jones case is illustrative about political demands dictating (selective) law enforcement during the Bush years: The US Justice Department has, ironically in August 2007 (that is under Bush's reign), prosecuted a US national for committing sexual crimes against minors in Moldova and Romania. Good they locked that creep up.
   
   So they could prosecute a US national committing sex crimes in Moldova and Romania? But US contractors raping adult US contractors are off limits for prosecution? It's pretty obvious where the curious view that the Justice Department couldn't do anything about what happened to Jones in Iraq because of limited jurisdiction came from. It was quite clearly related to the position brought forth by the Bush administration that they couldn't prosecute the abuses in Iraq or Guantanamo, because all that was outside US jurisdiction, too. Essentially, they threw Jones under the bus to cover their own asses for their actions against detainees in Guantanamo and beyond.
   
   Disgusting is too mild a word for that

 

On #1, a lot of consumer advocacy groups have been fighting mandatory binding arbitration. In a Google search, I saw them dealing with car dealerships, nursing homes, employment contracts, and all sorts of other businesses, and complaints against all of them. I really hope this get's regulated.

On #2, I would be of the opinion that if any American citizen does anything to another American citizen, it is subject to US law, regardless of where it happens. There may be allowances for cases that are prosecuted elsewhere (i.e. don't punish the crime twice), but if that doesn't happen, I think the case should be available to US courts.

 

It's not a criminal law matter. Criminal law would be where the state prosecutes those responsible for the rape and the cover up, with jail being the penalty for a conviction. Jones personally suing those she claims are resonsible for monetary damages is a civil case. I don't see a lot wrong with the contract saying arbitration should be used first, although this case is clearly way beyond anything that was envisaged would ever come up. I'm surprised that the mandatory process was still enforceable, maybe this was an extension of the matter being outside US jurisdiction? Irish law doesn't enforce unreasonable conditions put in by a dominant party to a contract and I thought this came from common law. I could be wrong and besides the US could easily have changed that themselves.

The case sure does show the complete legal vacuum that the US has created for some operating in Iraq. That doesn't include US troops, funnily enough, who are subject to US army law (even if application is poor). It's crazy to have people who are basically above the law and aren't even a member of the government. It's not hard to see why so many Iraqis detest these people. I can't help get the feeling this is well down the list of worst crimes committed over there. It's just that she's an American victim.

 

Yes.

But there is the possibility of (civil law) litigation for damages caused, among other things, by crimes. We have § 823 I, II BGB (German civil law code) for that. The clear inaction by the Justice Department as far as prosecutions are concerned is another matter, but still one of the more galling related aspects of her case.

 

I'm curious as to why this got posted in the Alley of Dangerous Sighs or is any connection to Halliburton or Iraq considered political?

Would anyone care if it had been IBM in Saudia Arabia?

Still good for her, I hope she wins if it really happened. Without knowing any details of the case it may be that the perps may have committed a perfect crime if they were able to get rid of all of the evidence.

File this under "yet another reason I would never go to a third or lower world country"

 

Snook,
the rape took place on on July 28, 2005 at Camp Hope, Baghdad, Iraq, a military base. Jones and her colleagues were contractors working for KBR. There is the Military Extraterritorial Jurisdiction Act of 2000 [MEJA]. MEJA was designed to extend Federal criminal jurisdiction over civilians accompanying the Armed Forces who commit serious offenses overseas when a host country does not exercise criminal jurisdiction.

Rape is an offense punishable by imprisonment for more than 1 year.

It appears as if the Bush administration chose to not enforce that law. Political enough for your taste?

 

What I meant by "it's not a criminal matter" was that the mandatory arbitration in the contact is completely separate from the failure to prosecute those involved, which is down to them apparently not being under any legal jurisdiction. I thought from your first post that you might be linking the two processes, which are completely separate. A civil case brought over a crime committed is still a civil case, not a criminal one.

 

Things get really complicated anytime a military member or civilian contracted by the military gets in trouble overseas. The whole issue of jurisdiction is often not well promulgated in such cases (along with political issues getting in the way). Once the criminal leaves the area prosecution is often too difficult to reasonably carry out.

Many criminals get away with whatever crimes they committed simply because there is rarely a dedicated police force/prosecutors office on foreign bases. People literally get away with murder at times.

It's wrong, but until Congress changes the laws (and MEJA was a good start) it's simply a fact of life. I'm glad she will at least get some justice.

 

Once again, I'm not at all familiar with the law or the case, but I thought you said all of the evidence "disappeared"? I don't know of too many attorney generals or district attornies who prosecute a case with no evidence. Is there a "smoking gun" as to why there wasn't a prosecution. I don't mean to sound mocking, I'm being serious. Are you implying that someone in the Bush administration squashed the prosecution? Is there any evidence of that or is it just wishful thinking?

This reminds me of the recent case of Shawn Merriman and Tila Tequila. The prosecutors said they can't press charges as they have no evidence a crime was committed.

I am also not belittling rape as I can't imagine a worse crime someone can commit to another person. As I said earlier they may have committed the perfect crime as they controlled everything to prevent any evidence from being collected. Now that is a serious problem.

 

I am saying what I said towards the end of my first post. That the Bush administration had no interest to exercise jurisdiction in Iraq after they had just claimed to have no jurisdiction offshore anyway (i.e. in particular in Guantanamo, Bagram etc. pp.).

Also, it isn't just about Jones' case, there were other rapes in similar settings. None were prosecuted.

The law came into power 2000. Since then according to Wiki some 12 cases, in about eight years, have been prosecuted under that law, which considering that there are wars going on with multiple reported instances of comparable crimes over the years, is, shall we say, a surprisingly low number.

As a first line of defence, the Bush administration had frequently argued that courts couldn't hear detainee cases, because of alleged lack of jurisdiction. They were also refusing to prosecute anyone in Jones case on grounds of lack of jurisdiction. Reading MEJA suggests that's simply wrong. Jones is a US national. The rapists were US nationals. They all were contractors, accompanying US armed forces. MEJA was applicable, it only required the will to use it.

The Bush administration and by extension the Mukasey Justice Department had no interest in and no incentive to prosecute anyone in Jones case. I think that the decision to no prosecute makes a some sense if one keeps in mind their argument in the detainee cases that whatever happened to the detainees, happened outside of US jurisdiction. That argument didn't hold up in court.

Had they prosecuted a high profile crime that happened in Iraq, they couldn't refuse to prosecute other high profile cases in Iraq (say, for crimes like torture) on grounds they had no jurisdiction. It would have also undermined their argument against hearing detainee cases in federal court.

That's what I meant when I said that Mukasey threw Jones under the Bus.

 

Ah, well strangely enough that makes sense to me. If prosecuting a case would weaken another case (or in this case a position) I can see how that would happen. While it truly sucks for the victim in this case I now understand what you are getting at. I am in a similiar (but vastly lastly serious) situation as I have a client involved in a multi-million dollar lawsuit. The lawyers have advised us and the client to not prepare or file any income tax returns as they are concerned it will damage the case. This has caused a quandry for me as CPAs tend to like to meet deadlines and file things timely.

 

It is one thing for a private citizen to do that.

It is quite another for the Justice Department to not enforce existing laws, which they are tasked to uphold. It's even worse when Mukasey's Justice Department didn't act in order to protect illegal conduct like the torture program enacted by the Bush administration. Bush didn't (have to) spell out his retro-active immunity without a reason. It was because crimes had been committed that they didn't want to see prosecuted, because it would eventually expose senior officials to prosecution as well.

Mukasey was the head of the Justice Department, and essentially tasked with upholding the rule of law, and he had sworn an oath to do so. He chose not to do so in order to cover up administration (mis-)conduct. His Department's assertion to have no jurisdiction in Jones' case is a clear and wilful misrepresentation.

A cop ignoring criminal conduct is either a coward or a crook. A cop actively helping the criminals is definitely a crook. A cop giving criminals a pass, so other criminals get a pass too, is even worse than that.

 

The fact that there was no criminal prosecution for the rape is absolutely revolting. The fact that the company and the government seems to have actively opposed her attempts to see justice for the crime in a civil court is reprehensible beyond words.

Obama is in a perfect position to really step up and do something. I like Obama a lot, but it's cases like this he should be commenting on and working to redress, not douchebag Harvard professors whining because their butts aren't being kissed by white cops or third rate musicians acting like fools. That's for us to ***** about. He should be more active in promoting his view of justice. Hopefully he will.

 

Good news for women like Mrs. Jones is that the Senate has passed the Franken Amendment, that withholds defence contracts from companies like Halliburton if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court.

Good! And good work from Mr. Franken.

 

I thought Franken was a dork. Now I see he's anything but. If this is the quality of work he is capable of doing, I'm pretty sure he'll get re-elected.

How on earth this Sessions douchebag can seriously argue that a rape victim shouldn't be allowed access to judicial remedy is totally beyond me. No amount of legal sophistry can get around that.

I'd like to see how everyone voted -- is there a website that tells which Senators voted which way on bills?

 

It passed 68/30. 2 senators weren't present for the vote. Here is the official senate site, where all such votes are listed. Since they don't sort by Yea and Nay, I took the liberty of listing the douchebags who voted against the ammendment. I hope every last one of them is run out of office on a rail -- but only after we have them gang-raped by government contractors immune to prosecution and litigation.


Alexander (R-TN)
Barrasso (R-WY)
Bond (R-MO)
Brownback (R-KS)
Bunning (R-KY)
Burr (R-NC)
Chambliss (R-GA)
Coburn (R-OK)
Cochran (R-MS)
Corker (R-TN)
Cornyn (R-TX)
Crapo (R-ID)
DeMint (R-SC)
Ensign (R-NV)
Enzi (R-WY)
Graham (R-SC)
Gregg (R-NH)
Inhofe (R-OK)
Isakson (R-GA)
Johanns (R-NE)
Kyl (R-AZ)
McCain (R-AZ)
McConnell (R-KY)
Risch (R-ID)
Roberts (R-KS)
Sessions (R-AL)
Shelby (R-AL)
Thune (R-SD)
Vitter (R-LA)
Wicker (R-MS)

I'm particularly disappointed (but sadly unsurprised) to find McCain amongst the dissenting votes.

 

Gee - they're all Republicans. I'm stunned!

 

As the only supposed conservatives in American politics, I find the Republicans sorely lacking in moral fibre amongst other things. I'm not naive enough to think that the Democrats are wonders themselves, but it would be nice if the Republican party wasnt a self parody.

 

Actually, blocking redress by setting up arbitration or "bending" it could probably be a criminal offence in its own right, though that would be hard to prove. Chances are that some decisions might have been taken on American soil with regard to the treatment of that lady, and that should be enough to warrant prosecution. Unfortunately, while I am a criminal lawyer, my limited education in US laws didn't cover criminal law.

 

Look at the bright side. Ten republicans did vote for the amendment. The cup isn't three quarters empty -- it's one quarter full!