There isn't any official confirmation on this, but sources are indicating that Sen. Daniel Inouye (D-HI) may strip Al Franken's anti-rape amendment from the defense appropriations bill. Franken's amendment was a response to the horrifying case of Jamie Jones, a KBR contractor in Iraq who was allegedly gang-raped by co-workers, then locked in a crate when she attempted to report the incident to superiors. Upon finally being released from her kidnappers, she attempted to sue in American courts, only to be told that her contract contained a mandatory arbitration clause that would keep her out of court. Arbitration lacks critical due process and oversight protections found in the judiciary, and the nature of the arbitration business makes it intrinsically biased towards repeat-players like defense contractors against individual claimants like Ms. Jones. Forcing rape victims to go into arbitration is effectively a way of shielding their rapists. So Senator Franken's amendment simply prohibits the United States government from working with defense contractors who include these clauses in their contracts.
While again, we don't know for sure Sen. Inouye's plans with regards to this amendment, it's kind of one of those things where you have to assume the worst and come out firing. If he's barraged with a ton of public pressure for something he was going to do anyway, no big deal. If we wait for "confirmation" from something his office undoubtedly wants to keep very quiet, we'll probably be too late.
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Thoughts on this related Kathleen Parker column?
http://www.washingtonpost.com/wp-dyn/content/article/2009/10/23/AR2009102303191.html
Do you think Franken's bill was too broad and may be unenforceable? Were there principled reasons to vote against it?
The unenforecability problem was, I understood it, a critique that the bill was too narrow, not too broad -- that the right thing to do would be to forbid these sorts of clauses in all employment contracts, full stop ("It may be more effective to seek a statutory prohibition of all such arrangements in any business transaction entered into within the jurisdiction of the United States, if these arrangements are deemed to pose an unacceptable method of recourse.").
If there was any indication Republicans were in favor of that, I'd give them full brownie points and then some. But, as Sen. Sessions' statement made quite clear, that doesn't seem to be the basis of their objection. Ms. Parker's column is rather obscene in its hackery on that point.
Yeah, I agree. She either ignores or rushes past their stated objections while pointing out different, more respectable objections to the bill. She then concludes that since these respectable objections exist, the Republicans were unfairly smeared. Illogical hackery, I concur.
I think there was a bit less hackery than you guys assume. Her final clause explicitly acknowledges that the Republicans may not have made their votes for the "right" reasons (i.e. due to the unenforceability issue), and she's mostly pointing out that it's unfair to say the senators must "support rape" if they voted to allow defense contractors to have mandatory arbitration clauses in their contracts, same as other employers can.
It depends if we'd be willing to say that any Senator who opposed the hypothetical broader piece of legislation that prohibited these clauses in all cases was "pro-rape". Which I think I would -- but I can't attack people for not voting for a hypothetical better bill than the one on the floor.
Also, given that many liberals oppose mandatory arbitration clauses in general, I don't think that the bar to the hypothetical broader bill is that liberals weren't willing to go that far (see again Sessions' comment).
Sure, but conservative opposition to the federal government's banning mandatory arbitration in employment contracts needn't be based on being "pro-rape." Indeed, it's devolving into the kind of silly rhetoric we heard from conservatives in the run-up to the Iraq war, when they'd quote Orwell on how being pacifist made one "objectively pro-fascist." (Though of course Orwell himself was sensible enough to reject his own formulation later on.)
But this can't be a brightline rule. We all agree that being unwilling to block X bad thing from happening, if your lack of willingness is in pursuit of a sufficiently unimportant principle, makes one constructively pro-X (from a moral standpoint). Obviously "sufficiently unimportant principle" is going to be contested, but here, where the question is whether pushing mandatory arbitration clauses to their furthest possible limits is more important than giving rape victims a day in court, I think we have at least a facial case for saying the threshold has been met.
David,
The current jurisprudence of the Supreme Court is that the principle of federalism is more important than giving a rape survivor her day in civil court. Why is it beyond the pale that the principle of freedom of contract and the preference for arbitration (again, supported by SCOTUS rulings) be deemed more important than that as well?
Her day in federal court, no? There are plenty of people who were pretty pissed off at the Morrison decision, for valid reasons. But I think there is a qualitative distinction between switching from federal to state court, and from any court to arbitration.
As I said, it's a subjective line -- but it seems to capture legitimate outrage.
I thought the only claims that would be arbitrated would be those between the employer and the employee. Isn't she still free to sue the persons who actually perpetrated the assault against her, just as the rape survivor in Morrison was seeking to sue her assailants and not their enablers at Virginia Tech?
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