Author: Ophelia Benson

Dear Male Senators:

All of you recently heard testimony about the case of Jamie Leigh Jones, a young woman who was sexually assaulted in 2005. Ms. Jones had been working for defense contractor Halliburton/KBR in Baghdad, Iraq when she was drugged and raped by seven co-workers. After reporting her rape to the company, she was kept locked in a shipping container without food or water for approximately one day and warned that if she left Iraq to receive medical treatment, she would lose her job.

Halliburton later informed Ms. Jones that her employment contract prohibited her from bringing sexual assault charges to court, and would require her to settle her complaints through private arbitration. Although the 5th Circuit Court of Appeals recently ruled that Ms. Jones’ injuries were not related to her employment and therefore not subject to the restrictions of her contract, that ruling is necessarily limited to the jurisdiction of this court, and is no guarantee of assistance to victims outside of that jurisdiction. Additionally, Halliburton has appealed the ruling in an attempt to prevent the case from going to court. Testimony provided by Ms. Jones and by other female coworkers indicates that other cases of sexual harassment have occurred and have also not been properly addressed.

To prevent future incidents of this kind, Senator Al Franken (D-Minnesota) recently introduced an amendment (Franken Amendment. No. 2588) to the Defense Appropriations Bill that would prevent companies that use mandatory arbitration clauses from receiving federal funds. That is, unless a company agrees to extend the federal, constitutionally guaranteed right to pursue charges within the court system, they would not be eligible for federal money. This amendment would apply in all cases of rape or assault that occur at companies eligible for federal funds, regardless of the gender of the victims. The Franken amendment passed with 68 votes in its favor, and with you 30 male Republican senators in opposition. For the record, the 30 of you who opposed the amendment are:

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-N), 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), and Wicker (R-MS).

At this time, only some of you have stated reasons for opposing this amendment. The media has not yet given much coverage to this amendment or to your votes, so I cannot be sure that most Americans have heard your reasons. I can tell you that I am disappointed that you voted against the amendment, and I’m even more disappointed with your stated reasons for doing so. I also suspect that if more people were aware that you opposed an amendment intended to help rape and assault victims, my disappointment would be widely shared.

Senator Jeff Sessions, you have been the most vocal of the amendment’s opponents. Based on the limited commentary of your peers who also voted against the amendment, I have to assume that they share your reasoning, and my responses to you should therefore be seen as responses to all.

In the recent floor debate, you argued that the amendment over-reached by seeking to regulate employment contracts, and you noted that, “The Congress should not be involved in writing or rewriting contracts. That’s just not how we should handle matters in the United States Senate, and certainly not without a lot of thought and care and the support of, at least, the opinion of the Department of Defense.”

This position is unsupportable. First, the Constitution provides certain rights to all United States citizens, along with assurance that neither federal nor state governments can infringe on those rights. These guarantees are generally understood to extend to institutions that receive federal funds. Protection of such guarantees was the basis for civil rights legislation during the 1960s, including desegregation of public schools. Although private institutions may have some latitude in this regard, they have historically been required to provide the same guarantees if they receive taxpayer money. For instance, federal courts have declared speech codes (campus policies restricting the first amendment right to free expression) at private universities to be unconstitutional in cases in which the universities received federal funding. Halliburton and other companies in receipt of defense contracts could be required to provide the same protections of constitutional rights as a public institution. Indeed, they could arguably be considered de facto public institutions. Rights they would be required to protect would include the right for a victim to pursue civil charges decided by a jury, or the right to report the incident to a crime enforcement authority that could initiate pursuit of criminal charges.

However, we need not even consider companies working under government contracts as public institutions to see the constitutionality of the Franken amendment. The amendment, after all, is constructed as an addition to appropriations bill. As articulated by Senator Franken during his defense of the amendment during floor debate, congressional funding, or the “power of the purse,” is a widely and broadly used tactic to pursue broad government objectives. Funding an institution is one way to express government approval of its mission or policies, and to enhance its ability to continue pursuit of its goals. Conversely, decisions not to fund an institution can send a powerful message that it maintains positions considered to be inconsistent with the values and objectives of the United States, and that the government will not abet its actions. There is certainly no requirement for the government to subsidize organizations that compromise the civil rights of its employees. There is, in fact, a strong imperative not to subsidize such organizations, and appropriations bills that prevent such subsidies are well within the legislative powers of Congress. The question for you, senator, is why you do not seem to consider a company that ignores the legal rights of rape victims to be unworthy of government funding.

During the debate of the amendment, Senator Sessions, you also maintained that arbitration is an acceptable method for addressing grievances such as that of Ms. Jones. Your comments also seem to indicate a mistaken belief that the amendment prohibits arbitration in any disputes between government-contracted institutions and their employees. “For overall justice in the American system, I think arbitration [in] employment contracts is legitimate and we ought not to constrict it too much,” you said. Your confusion here is puzzling, if you read the amendment. Franken’s amendment does not seek a general prohibition of arbitration in employment contracts – it seeks to prevent arbitration from being an employee’s only recourse when the employee is a victim of rape or assault. Companies such as Halliburton are the ones doing the constricting, by depriving employees of a legal right to address such crimes in court.

Your comments also show an amazing lack of understanding of the uses and limitations of arbitration. It is true that arbitration can be a quick and useful tool for resolving contract disputes about issues such as salaries or commissions. Ms. Jones’ complaint does not involve a mundane contractual dispute of this kind. She was gang-raped. According to information provided in a 2007 testimony before a House of Representatives subcommittee, she was vaginally and anally penetrated and left bleeding severely. Later medical examination revealed that her breasts had been asymmetrically disfigured due to the force used by her assailants, and her pectoral muscles had been torn. Victims of rape and assault such as Ms. Jones don’t want a quick and useful resolution to their complaints. They want justice. Neither you nor any other representative of the federal government has the right to tell such a victim which of the legally available strategies should be used to pursue it, or to condone efforts to make arbitration the only possible strategy.

Companies such as Halliburton seek to make arbitration the only recourse for assault victims precisely because it is ill suited to provide the justice that victims seek. Arbitration occurs behind closed doors, without the benefit of a jury. Decisions reached through arbitration are binding, with limited potential for appeals. Because the proceedings are private, public details of the offense are kept from the public record, where they could have increased awareness of the continuing problems that made the offense possible. Perhaps most importantly, because arbitration takes place outside the court system, judgments cannot become a matter of judicial record and cannot serve as precedents in future cases. For all of these reasons, victims of heinous assaults such as Ms. Jones (and anyone with an ability to understand the enormity of the violations committed against them) would much prefer to exercise their right to a day in court. Were you to allow yourself a moment of honest reflection, I think you would agree.

Perhaps the most confounding of all of your objections to the amendment is your assertion that it is a “political attack” against Halliburton. It is true that Halliburton has been subjected to a great deal of scrutiny from Democrats and liberals, especially since the beginning of the war in Iraq. It doesn’t follow that such scrutiny must be unwarranted, or that any legislation that inconveniences Halliburton is somehow illegitimate. First, the amendment does not mention Halliburton or any other company by name – it is a general attempt to prevent travesties like the one that occurred to Ms. Jones from happening in the future, at any company, at any time. Second, the merits of the amendment have to be considered on their own, without excavating for alleged motives on the part of those supporting it. I would think that the desire to prevent more employees at government-contracted institutions from suffering the fate of Ms. Jones would be motive enough for supporting the amendment. I would also think that worries about perceived “political attacks” would be insignificant next to the worries that more crimes of this nature will escape justice because of covert arbitration agreements. Siding with the reputation of a company over the rights of a person does not exactly speak well of your priorities.

In fact, based on review of your stated reasons for opposing this amendment, I have to conclude that you senators plainly do not actually believe any of the things you as Republicans claim to believe. Do not speak to us about defending individualism, when you sell out an individual to better protect a corporation. Do not warn me about the dangers of big government, while you support using government money to aid and abet institutions that deny our civil and legal rights. Do not speak to us about values, because any value system that refuses to address the suffering of others is not one that I share. Most of all, do not pretend that your values somehow derive from a higher source of authority. In light of your opposition to this amendment, any such claim should only be greeted with laughter and ridicule.

Sincerely,
A baffled citizen

Notes:

The roll-call voting record for the amendment.

The text of the amendment itself.

A recap of the voting and floor debate.

The story of Jamie Leigh Jones has been widely recounted, for instance, by ABC News.