Mandatory Binding Arbitration Means Alleged Halliburton Rapists Could Go Free

A woman who filed a civil lawsuit against Halliburton for being the victim of a gang rape by her coworkers in Iraq will have her day in court, kangaroo court, thanks to the mandatory binding arbitration clause in her employment contract. Jamie Leigh Jones says she was drugged and raped by her fellow workers, then imprisoned inside a shipping container and left without food or water until the US embassy came to rescue after the State Department got calls from her father. She says she was told she would be fired if she sought medical treatment.

Mandatory arbitration means that all disputes are handled by an extra-judicial arbitration firm whose fees are paid for by the corporations and there’s zero appeals. One study found that arbitration firms rule against consumers 95% of the time. Now, this is just a civil case, and with the media attention surrounding her story, there will probably be action by the Justice Department to press criminal charges. Let’s hope so because we know arbitration is not going to give her justice.

CNN legal analyst: Alleged Halliburton rapists may go free [Raw Story](Thanks to Tino!)

RELATED
“Halliburton”, gang rape, and fear of arbitration: the Jamie Leigh Jones case [Overlawyered]
KBR Statements and memo regarding rape allegations [ABC]

Comments

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  1. Adam Hyland says:

    Wow.

    But the summary is right about the criminal case being able to proceed.

    I would bet STRONGLY that a good lawyer could prove standing and jurisdiction in order to at least make a court claim that the BA clause in the contract is unconscionable. Once that is the case, you could proceed w/ a civil case.

  2. Benstein says:

    I would think that in this case she could probably sue regardless. Just get a good lawyer.

  3. El_Guapo says:

    Disgusting. Arbitration is a joke. Come to think of it, so is Haliburton.

  4. dsean says:

    Even if she had her day in court, that wouldn’t result in the rapists going to jail.

    The suit she filed was in Civil Court. The problem though, is that she’d already made a demand for arbitration under her employment agreement. KBR/Halliburton, made a motion to stay the suit pending the resolution of the arbitration. Her problem – you only get to file a proceeding in 1 forum. Her first attorney chose arbitration, probably for good reason. Now she wants a second opportunity to file somewhere else. That is forbidden under the Federal Rules of Civil Procedure.

    The rapists will have to be indicted by the US Attorney. Contrary to some of the things I have read, they will not have immunity. They only have immunity in Iraqi courts, not US courts. They can and will be prosecuted if there is evidence sufficient to show a crime was committed. [Botched investigation aside].

    There are plenty of reasons to hate binding arbitration clauses, but this is not one of them.

  5. Adam Hyland says:

    @dsean:

    she could just claim that she wasn’t properly represented and attempt to repudiate her request for BA.

    Not like that would really work 100%, but it might.

  6. sleze69 says:

    @dsean: Contrary to some of the things I have read, they will not have immunity.

    As much as I don’t want to digress…Blackwater contracters are essentially immune to laws in Iraq so why wouldn’t Halliburton rapist contractors?

    Too bad no one brought up this case yesterday during the hearing on arbitration.

  7. Benstein says:

    @sleze69: dsean said they might be immune to prosecution in Iraq courts, but not US courts.

  8. hubris says:

    Awful as it is, it might be something like this that’s needed in order to bring reform to mandatory arbitration. If the story gets enough traction, it could topple the whole thing.

  9. dsean says:

    @Hyland: Probably not, actually. There’s no reason to believe that the arbitration request was improper, and in all likelihood, if she’d filed the complaint in a US Federal District Court initially, it would have been stayed pending arbitration under the AAA.

    I think she’ll actually be better off here in arbitration rather than in district court. The Rules of Evidence are less strict (i.e. hearsay can be heard if the arbitrator so chooses). And in a case like this, she’s probably going to get a top-notch arbitrator (likely a former federal or state judge).

    The ultimate problem I have with this story is that she’s using the media to pressure KBR/Halliburton (possible the LEAST popular company in America) into a huge settlement. I certainly don’t begrudge her a huge settlement, because if her allegations are true, she’s gone through hell. But I hate the fact that she’s using the media to pressure the defendants rather than using the mechanism she’s chosen for resolution.

  10. There are no words for how wrong the entire thing is.

  11. Buran says:

    Why isn’t she pressing charges in CRIMINAL court?

  12. Hoss says:

    Can anyone explain the picture with the article? Did she appear on 20/20 all decked out with fancy hair, jewels and smiling? I smell a PR firm neverby.

  13. selenium7 says:

    People keep saying “method she’s chosen”—as if she picked binding arbitration instead of a real trial. The whole point is that she did NOT choose it. Halliburton is perpetrating the same crap that brokerage firms do: when you sign their contract, you agree to binding arbitration. they will never tell you that, but you do. and it sucks. i should know. my dad was a lawyer who handled these cases all the time and it was very hard to get a finding for the consumer.

    how many times have you signed an employment contract with binding arbitration in it? would you know what it was? would you care? who plans on having their co-works commit such an atrocity???

    you’re bummed she is using the media? i’m bummed she was traumatized for life and the company she works for is letting her twist in the wind. she is doing the best she can under the circumstances.

  14. selenium7 says:

    She’s supposed to post a picture of herself after being raped and abused? So she can be humiliated all over again??? She’s supposed to appear on tv looking tired and worn and poor? What is your point?

  15. @Hossofcourse: I doubt it. It’s more likely just a photo of her they got from the family.

  16. forever_knight says:

    that photo isn’t from the consumerist flikr pool??

  17. nardo218 says:

    @dsean: But … that’s exactly what happened with the OJ case. First he was tried in criminal court, then in civil court.

  18. Freedomboy says:

    Can she go back to Iraq as a contractor and shoot their cocks off and be immune? Seems fair.

  19. Techguy1138 says:

    @sleze69:
    Blackwater has a special deal with the US and Iraqi government. This doesn’t cover KBR.

    Binding arbitration does not cover this. This is not a dispute, this is a crime. No binding arbitration clause will protect a murder nor any other violent criminal. Otherwise a landlord could simply murder tenets that were complaining.

    I’m not sure if us law applies to US citizens outside of our nations boarders. If it does then these guys are screwed, if not she may have to apply in Iraqi court. I have no idea if they would even hear this case.

    • LeChiffre says:

      @Techguy1138: I am no lawyer, but in the case of being on a U.S. Base overseas, U.S. law still applies. I know this as fact. KBR, Haliburton, and other contractors for some reasons seem to think they’re untouchable over there. To be honest, I was quite appalled at their lack of “giving a shit” attitude’s when I work with them. I work for DOD and if I had been a supervisor over any of them, I would have fired half of these folks and not lost a wink of sleep and this includes the women also. The problem is that the supervisor’s and their subordinates all play the same game and only look out for themselves. And as I mentioned in another post, they just act as though you cannot do anything and they’re untouchable. Some of the guys that I worked for just seemed to be the lowest scum that came from the states as though they never would have gotten a decent job over here. When I walked into a room full of contractors, they would immediately get quiet. This happened to us DOD folks all the time and it was as if they were trying to hide something. I could tell you a hundred stories about these folks.

  20. Adam Hyland says:

    @dsean:

    That’s probably true. I readily admit I’m not familiar with the facts of the case. One possibility that I can see is that if her contract with the company dictated the use of binding arbitration, she could claim that her initial arbitration request was based on a contract which might be found to be unconscionable. OORRR. She could claim that such a request for arbitration was made after the company claimed (maybe falsely) that she forfeited her rights to pursue a civil judgment.

    Though I understand that the leeway to retract statements and claims is minimal, it is there.

  21. smitty1123 says:

    “Let’s hope so because we know arbitration is not going to give her justice.”

    Proof please.

  22. Optimus says:

    @Buran: I think it’s juridictional issues that encouraged the decision to go to MBA kangaroo court.

    @Freedomboy: I’m totally there with you on that one. “Eye for an eye” is a very fitting and successful deterrent in cases of rape.

  23. Optimus says:

    @Optimus: Err … by “eye for an eye” I meant it in every sense of the phrase. She was raped by a group of men. Each of those men should suffer the same as punishment.

    Cruel and unusual? Wouldn’t you say the same of the crime itself?

  24. ? graffiksguru says:

    @dsean: You are seriously mad that she is using the media to bring attention to this story? Reading this [pajamasmedia.com] it sounds like she tried to go through the proper channels and she got stonewalled. It seems to me that until the day before the 20/20 segment was set to air they didn’t have any forward progress in the case, but because of it AUSU decided they should meet with her. Do you think that was a coincidence? I’m willing to bet that if she didn’t, nothing would have happened, and no one would know of the atrocities going on over there, by our own people.

  25. azntg says:

    @dsean: I respect your opinion, but I disagree. I feel that you are just saying that because you weren’t involved in this. Admittedly, neither have I. But, just for argument’s sake, let’s just say you and I, in separate, but identical circumstances had undergone the same thing that lady allegedly went through.

    Would you be sitting in a box, happy to be mandated to take the situtation through arbitration, happy to be praying that the arbitrator will “play fair,” even though there’s next to no reasons or incentives for them to do so? Wouldn’t you contact the media regarding the threats made to you and an atrocious situation that’s very likely to otherwise slip by undetected if things run its course? For me, the answer is no on both counts, there’s a tolerant, but fine line for this and it got crossed. Furthermore, wouldn’t you be pissed if the offending party gets their way, they can get away with ruining my livelihood, personal life and professional life without any repercussions on their side? Talk about having nothing to lose! Finally, I don’t buy the top-notch arbitrator argument. They are FORMER judges and aside from personality points, they are no longer legally bound to the same federal/state standards.

    If you can honestly and genuinely answer “no” to all of them, to each his own. But, you should consider moving to a country where there’s no semblance of law and order, you might feel more at home there especially if you become a victim while living there.

    —-

    This situation is really f*cked up. I hope she can get some form of justice where it’s due, provided that she’s telling the whole truth and nothing but the whole truth.

  26. superborty says:

    @ El Guapo: What on earth do you even know about Halliburton other than it was a liberal buzz word? Nothing would be the answer… I suspect you may go look up on the web something now and try to post it… Obviously this is a heinous act if true, but please cut the BS re Halliburton, etc…

  27. TechnoDestructo says:

    It wouldn’t be nice for HER, but it could be nice for everyone else if she has to bang her head against the binding arbitration brick wall a few times while the spotlight is still on her. I can think of no better way to bring legislative attention to the issue.

  28. veraikon says:

    @Hossofcourse: So rape victims aren’t allowed to look nice? I think that’s just how she like to dress/look, even before the attack. Case and point: she had breast implants (one of which was *ruptured* during the attack, but that’s beside the point). But to me, it only proves that she looks the way she does because she wants to – not because she’s trying to “look good” for the cameras. Which kinda makes me wonder…if she’s high-maintenance by nature, why did she go to Iraq in the first place? What was her job? I’m pretty high-maintenance myself and I can’t even stand camping. Forget about a hostile desert country! I just wonder…why did she go?

  29. backbroken says:

    @veraikon:
    Exactly. Attractive people shouldn’t go to Iraq.

    W
    T
    F

  30. dsean says:

    @azntg:
    Okay, I’m not really sure what your argument is.

    You seem to be making 2 separate arguments, and I apologize if I am mischaraterizing. First, you seem to be arguing that arbitration in an inferior forum to the formal courts. I think this is mistaken for several reasons. A) The costs are dramatically lower for all parties (this is especially important given that her attorney is likely on a contingency basis and costs come off the top); B) There is judicial review of the findings of the arbitrator. While it is difficult to overcome an arbitration decision (the standard is manifest disregard), it does offer some protection to all claimants; and C) Arbitrations typically are much faster than the Courts. This case could easily take 2+ years before it ends up before a judge, and possibly a LOT longer if KBR’s lawyers are aggressive in their discovery. Any arbitration will likely be concluded within the next year. That’s a significant value to both parties.

    Second, you seem to be arguing that arbitrators are somehow inferior. In this, I think you are truly wrong. Most of the time, they are practicing attorneys who are former judges. They depend on their reputation for their income. They are unlikely to be swayed by the passions or powers of either party. Additionally, in every arbitration agreement I have seen, each party nominates a slate of arbitrators and they mutually decide who will serve. If that fails, then the AAA will choose an impartial arbitrator. Their qualifications are generally impeccable, and often, they have special knowlegde of the situation (i.e. in this case, an arbitrator who specializes in sexual harrassment issues might be perfect since that’s the claim against the employer).

    As for the “repercussions” – they are the same in or out of a formal court. If her claim has merit, then KBR will pay her damages. This case would be unlikely to make it to trial in a formal court, so the real question is the amount that she will be paid.

    The alleged attackers will face criminal prosecution (I believe that the District of D.C. has been nominated to handle all crimes arising out of US conduct in Iraq).

  31. ncboxer says:

    This site has a more lawyerly approach to the whole thing- [www.overlawyered.com]

    But it does raise the question if the story of the rape is getting worse and worse as it is retold. It also has extensive links.

  32. BeFrugalNotCheap says:

    Well, this whole thing stinks. Anyone that violates a female should be executed. That aside, the US had better get to the bottom of this fast and quit fumbling around. But seeing as it’s been 2 years since the incident and Halliburton has said the the suspects are no longer with the company (meaning they’ve cleaned their hands of the problem? WTF?) , it may be longer still.

  33. huadpe says:

    @Buran: YOU can’t press criminal charges. In some cases of a clear-cut crime with many witnesses, the cops will ask the victim if they want to “press charges.” For example if there is a protest in the parking lot of the store you own, and they won’t leave when asked, the cops may ask the owner if he actually wants to “press charges” or simply wants to reach an agreement with the protesters to leave. Actually pressing charges is something done by the local district attorney, state attorney general, or federal attorney general (done by a subordinate of course, but the power rests with those individuals fundamentally.)

    When the cops ask “do you want to press charges?” it usually indicates that if you don’t want to pursue it, they will drop it. But they can and often do choose to drop it on their own, and excepting the people listed above and their subordinates, nobody can actually press criminal charges against another person in the US.

    No, IANAL, but I’m closely related to a NYC assistant district attorney.

  34. dsean says:

    @tbartley:
    Damn, I wrote a longer response, but my browser crashed.

    My point in regards to the media is generally that she harms the entire process by trying to take claims out of a tribunal and into a public opinion arena. I’ll also admit that it makes me somewhat skeptical of her claims when the media sensationalizes them (and the fact that she’s already optioned her story makes me pause).

  35. CaptainConsumer says:

    If Ms. Jones would be so kind as to let us know the NAMES of the guys who did this perhaps things will work themselves out

  36. dorianh49 says:

    @sleze69: “Too bad no one brought up this case yesterday during the hearing on arbitration.”

    I thought it was, from what I read of the liveblog:

    [consumerist.com]

    “10:35: Holy sh*t! The woman who was raped in Iraq and accused Halliburton of covering up her case is trying to sue the company in federal court. She is now being told that she must submit to mandatory binding arbitration.”

  37. Freedomboy says:

    How many more get raped while the arbitration wheel slowly turns here?

    Profit cost plus based contractors doing military work are the worst use of PUBLIC FUNDS ever thought up. They are training to become a national law force here at home you know. Why else are tasers so common now and why else is the Taser maker demo’ing a version to be shot from a shotgun [read pump action repeating shotgun]with no need for the single use version, …..crowd control??

    Nah, couldn’t be that.

    Funny how that works out.

  38. num1skeptic says:

    i’d just murder the rapists and claim insanity. that’s justice.

  39. Death says:

    At least it didn’t happen in Iran, where she’d be sentenced to a severe whipping for being in the path of all those peni.

  40. Death says:

    Two corrections:
    1, I don’t mean to make light of her situation, and 2, I meant Saudi Arabia.

  41. @forever_knight: I’m pretty sure I saw the same photo on Google News earlier today.

  42. ? graffiksguru says:

    @dsean: Okay, I can see where your coming from.

  43. lincolnparadox says:

    At least two Congresspeople are speaking out about this case. What that means, I dunno, but DC is talking about it, at least.

    Maybe GW will step in and do something for this poor girl?

    [abcnews.go.com]

  44. JustRunTheDamnBallBillick. says:

    Maybe we shouldnt get worked up about it, since shehas changed her story repeatedly, and is suing people who have nothing to do with her. Read the piece on Overlawyered about this.

  45. JustRunTheDamnBallBillick. says:

    @JustRunTheDamnBallBillick.: Im not saying she wasnt raped, as it appears she obviously was, but Im not sure how Halliburton and the State Dept. are liable for something they had no control over.

  46. Optimus says:

    @lincolnparadox: I’m gonna let that obvious opening for a GW/Clinton joke slide, as I don’t wish to anger the Republicrats in the room.

  47. Optimus says:

    @JustRunTheDamnBallBillick.: From the sounds of it, they are liable for the attempted cover up and threats against the victim.

  48. Munsoned says:

    I wonder if there is multiple potential jurisdictions that could take the CRIMINAL lead on this. Correct me if I’m wrong, but the DA can bring charges in the place where the crime is committed (let’s just say federal court for arguments sake since this was Iraq) as well as where the jurisdiction of the victim (her home state court)? Man, I should have paid more attention in l&@ school…

  49. Munsoned says:

    @JustRunTheDamnBallBillick.: Companies are often found liable for the actions of their employees through numerous legal theories. Agency comes immediately to mind. Sure, agency theory might not work if they were acting outside the scope of their employment, but how about straight up negligence? You can’t hire a pedophile sex offender as a kindergarden teacher for a reason…

    The point is: We don’t know all the facts, but there are numerous theories that result in employers paying through the nose for the insane (or illegal) actions of their employees.

  50. Buran says:

    @Optimus: How exactly does the government have obligations to use monkey court if a crime has been committed? The government signed no contract agreeing to MBA. A crime is a crime.

  51. Optimus says:

    @Buran: Don’t misunderstand me. I agree with you 100%.

    On the other hand, her lawyer probably thought that since the crime was committed (and thus jurisdiction) in a region of the world that sentences rape victims rather than rapists, she was better off taking the MBA kangaroo court + publicity = justice route.

    It’s interesting how MBA, (RI|MP)AA litigation, Universal Default, and Net Neutrality have been all but ignored for a while just to have them all show up in the news (finally) at roughly the same time. If I were a conspiracy theorist (which I am), I’d say this is almost an organized assault on those who are against consumer control. And it seems extremely non-partisan (or at least anti-Republicrat).

  52. LyricalGangster says:

    Does this really belong on Consumerist? I mean, I see the nexus, mandatory binding arbitration, but isn’t this story a stretch for a consumer-oriented website?

  53. TechnoDestructo says:

    @LyricalGangster:

    Well, if it ends up affecting mandatory binding arbitration, it won’t be.

    If it doesn’t, well, they don’t have to keep following it. But if it does, they can’t go back and pretend they were following it all along.

  54. modena says:

    @dsean:

    I must disagree with your take on the virtues of arbitration. Arbitration *is* an inferior forum. It’s cheaper than civil court, but that’s about all it has going for it — unless you have the kind of interests that make arbitration’s incentive structure work for you.

    Even when an arbitration agreement provides that the parties split the cost of the arbitrator, it is always the corporate entity who holds the power. Why? Corporations are the ONLY regular customers for arbitration firms, and for individual arbitrators (who are basically paid on a “commission” basis). A company like Ford Motor Co. might have hundreds of cases in arbitration each year. Not only does Ford hold the power as to which arbitration firm it will do business with (the firm is usually specified in the contract, which of course is always drafted by the corporation) — but it also has the ability to seek and reject individual arbitrators with whom it has had prior experience.

    By contrast, Joe Schmoe will probably only sue Ford (or anyone else) once in his lifetime. Not only does the arbitration firm not give a crap about keeping his “business” (he never chose the firm in the first place), but Mr. Schmoe is at a logistical disadvantage because he has no inside information or prior experience with any of the arbitrators. So, when he gets a list of 6 proposed arbitrators, they’ll all look the same to him.

    I once read an article from a retired state supreme court justice who had agreed to serve as an arbitrator for one of the big firms. His first case was individual consumer vs. large corporation. He made the “mistake” of ruling in the consumer’s favor, and was never offered another case again — despite his eminent credentials.

  55. camille_javal says:

    @JustRunTheDamnBallBillick.: The common law doctrine of respondeat superior means that if an employee commits a civil wrong against a third party, the employer may be held liable for the employee’s actions if those actions were committed somehow within the scope of employment.

  56. camille_javal says:

    @camille_javal: Note: I am not passing an opinion one way or the other on this case, or Halliburton’s appropriate level of responsibility.

  57. PølάrβǽЯ says:

    @Freedomboy: “Can she go back to Iraq as a contractor and shoot their cocks off and be immune? Seems fair.”

    All in favor of Freedomboy’s motion, say “aye.”

    AYE!

  58. modena says:

    @dsean:

    “But I hate the fact that she’s using the media to pressure the defendants rather than using the mechanism she’s chosen for resolution.”

    I don’t see how you could envision it any other way, especially when she’s up against organizations as fierce, powerful and corrupt as our major defense contractors.

    The fact is, even if her case were proceeding in a legitimate court, she would *still* need to rely heavily on media attention. In the American legal system, resources are everything, period. Given the sheer size the defendants, this woman would be clinically insane to dare sue them *without* playing the media.

    It’s a well-known and unavoidable fact of asymmetric warfare: you have to play to your advantages (in this case, she’s pretty and sympathetic). The defendants have gobs of money and armies of lawyers. She can’t compete with that directly.

  59. edrebber says:

    @Buran: The government, state or federal, has to press charges in criminal court. Individuals can report a crime, but the prosecutor presses charges.

  60. cindel says:

    She was drugged so no she can’t tell you the names of her rapists. The rape kit proved she was raped and it mysterious “disappear”.

  61. cindel says:

    @cindel: mysteriously

  62. psyop63b says:

    She should go work for Blackwater. Open fire on those S.O.B.’s!

  63. mfw says:

    @ whomever was looking for proof that arbitration would not work- consider this: in addition to numerous studies that suggest in mandatory binding arbitration, the companies come out on top 85%-95% of the time, the simple structure of the whole arbitration system shows that it is designed to favor the more powerful parties. Halliburton/KBR and other companies hire arbitration agencies like the AAA or the NAF to run arbitration in consumer and employee disputes. The arbitrators want repeat business, so they generally give their CUSTOMERS (these large firms) what they want. I heard of one case where a former attorney had handled numerous arbitration disputes for companies like Gateway, HP and other, always finding for the company. After finding for the consumer on ONE occasion, he was NEVER hired again. The whole system is flawed. Hopefully this poor girl can get the whole BA clause declared unconscionable, or else maybe get KBR equitably estopped from using it if their alleged complacence in that matter is shown to be true.

  64. dsean says:

    @camille_javal:

    Respondeat superior, and indeed all forms of vicarious liability, stop at the point where there is an intervening criminal act by the employee. If the action that lead to damage (in this case, the rape) is outside the scope of the tortfeasor’s employment, then it is also difficult, though not impossible, to impose vicarious liability.

    That is why if you read her complaint, she is suing her employer for sexual harrassment and not the rape itself. [She claims that the hostile environment ultimately resulted in the rape and should therefore be considered for the purpose of consequential and punitive damages, but the rape itself does not form an independent basis of a tor against KBR]. She is suing the individuals she alleges rape her in an individual capacity.

  65. dsean says:

    @mfw:
    Look at the commentary by Ted Olsen on Overlawyered.com. That statistic that you cite is flawed for a number of reasons. First, it excludes all cases that settle. Second, it lacks context. As Olsen points out, that 85% number is roughly equivalent to what plaintiffs receive in the formal courts.

    Binding arbitration clauses as part of employment agreements are not unconscionable. To be unconscionable, you have to look at the clause itself in the context of the entire contract. In employment contracts, it is considered that an employee received something in return for limiting their ability to go to court (i.e. a job and salary).

    Clearly, if what she is alleging is true, then the actions of the individuals are unconsionable, but that does not mean that the contract clause itself is unconscionable.

  66. dsean says:

    @modena:
    There are two issues that you present that need to be disentangled. The first is the notion of repeat players in the arbitration arena. The second is the incentives of the arbitrators.

    There are certainly forums where repeat players wield too much power in arbitrations. The typical example is credit card arbitrations. In those cases, the plaintiff-consumer never sees the arbitrator at all. The entire decision is made on the basis of written submissions. In those cases, it is incredibly difficult for a consumer to prevail, precisely because of the institutional power that the companies hold. However, that is entirely different from an employer-employee arbitration. In these cases, the employee is represented by counsel who will insist upon a hearing before an arbitrator. Also, employers are typically not repeat players in the same way that credit card companies are. CC companies file thousands, if not hundreds of thousands, of arbitrations per year. An employer could not exist if they were forced to constantly defend arbitrations against current and former employees.

    That does tie into the second issue – arbitrator incentives. When there are a few huge players, as in the credit card industry, then those players have the ability to influence outcomes in a way that we should not permit. They can do that precisely in the way you suggest – “rule against me and I’ll never hire you again.” [In fact, the case of the former judge that's been cited in this discussion relates to a credit card arbitration, not an employment arbitration]. However, because of the mulititude of employers out there, impartiality is a higher value. No employee attorney will agree to an arbitrator who is known to be biased (remember, in these cases both parties can veto the arbitrator).

    As for trying the case in the media, I think you and I will have to disagree. I understand the point that it is one of the few areas where she CAN put pressure on KBR, but I think that is seperate from whether or not she SHOULD. I think it demeans the system and should be considered unacceptable, but I understand that it has become common practice.

  67. jwissick says:

    This really bothers me. I feel for her and all, but it occurs to me that US courts have ZERO standing here. The crime was outside of the US. What happens outside the US can be tried in a US court? No. This sets a dangerous president.

  68. speedwell (propagandist and secular snarkist) says:

    Uh, OK, I just understood why my boss won’t let me set foot in the Middle East. I thought it was just mild chauvinism, but it appears to be justified. I had never heard of this case, but I bet anything he had. (No, I don’t work for Halliburton… but I do work in the oil industry as a trainer.)

  69. dsean says:

    @jwissick:
    They were in a United States controlled area in a foreign country, so that gives them jurisdiction.

    Also, most federal criminal laws apply to crimes against U.S. citizens who are abroad. So, hypothetically, if you were travelling in Brazil and were murdered or something, the U.S. would have a basis for jurisdiction against the criminal. This actually goes back a very long way in legal history (both English and Roman) to the principle that a ruler/king should not be deprived of his vassals when they travel from his lands. Somewhat arcane, but virtually every country recognizes the principle (well, western country anyhow, I can’t speak for others).

  70. pshah says:

    Umm… so Halliburton is not satisfied by just raping the country’s budget… they have to rape their workers as well…

  71. chargernj says:

    @dsean: why is this wrong? corporation use the media to their advantage all the time. They buy ad time, make public service announcements, [www.halliburton.com]

    Normal people can’t afford to buy ad time on major networks so the only thing that she has of value is her story. If her story is such that it is found to be true or at least very credible then why shouldn’t she speak to which ever reporter will listen to her.

  72. dsean says:

    @chargernj: I think there’s a difference between saying it’s “wrong” and saying it undermines the institutions. I’m not making a moral judgment or claim, I’m making an institutional claim. In my ideal world, a neutral arbiter of facts would release an impartial finding of facts that she could then trumpet and take to the media. Even sell her story then. What I think is problematic is that she’s trumpeting unproven allegations of the most reprehensible conduct out there. If her claims are true, then she should use her story to cast even more negative light on KBR.

    I guess my point boils down to your “if/then” question. IF her story is found to be true, THEN should take advantage of every opportunity to speak out. She hasn’t tested her story yet in front of a neutral party. She’s doing the THEN before the IF, and that’s what I find troubling.

    [the wording may be a bit confusing, so I apologize if I'm unclear, but I'm finding it difficult to write it in a more precise way]

  73. modena says:

    @dsean:

    I understand the distinction you’re making between routinized “mass-market” arbitrations (such as credit cards) vs. arbitrations that are less frequent and more factually distinct. The latter are less subject to abuse; I’d agree.

    However, I think the overall incentives on the arbitration industry are powerful enough that big corporate interests will generally carry the day, even if a particular corporation doesn’t stand to have a large number of a particular type of arbitrations. That is, arbitration firms know who their clientele is, and that knowledge is reflected in whom they choose to employ. So, I believe that a list of 6 employment law experts provided by AAA is, more often than not, going to provide a very good forum to an employer defendant no matter which arbitrator is chosen.

    (Without discussing any particulars, I can say that I’ve had to assist in identifying arbitrators who are likely to side with corporate clients — I have never had any difficulty in doing so, even when dealing with more “reputable” firms such as AAA.)

    * * *

    As far as leveraging the media, I can appreciate your desire for an “ideal world,” but certainly you must acknowledge that we don’t live in one. I think it’s naive to suggest that a particular Plaintiff throw herself upon the altar and be the only side to play “fair,” just to pay tribute to a vision of a justice system that doesn’t exist. If Halliburton decides to dig in its heels and defend itself, you can bet it won’t restrict itself to the confines of proper civil litigation. No, it will barrage the Plaintiff with frivolous motions, it will hire scores of private investigators, it will leak damaging personal information about the Plaintiff to the press, and if all else fails — it will go to Congress and seek protection. (Look at the telecom lawsuits!)

  74. RvLeshrac says:

    Yeesh.

    Here’s the way it is:

    Rape is one of a class of crimes where the victim does not need to request prosecution in order to have the case prosecuted. Arbitration has absolutely no impact on the legal status of a rape, just as binding arbitration couldn’t be used to shield them for murder.

    It is up to the Justice Department to prosecute this case, regardless of what happens during the arbitration. Even if the alleged rapists are found innocent of the charges by the arbitrator, that finding has absolutely no bearing on the courts in a criminal case.

  75. Klink says:

    @smitty1123: I found this really interesting article with proof. It’s called “Mandatory Binding Arbitration Means Alleged Halliburton Rapists Could Go Free”
    And it can be found here: [consumerist.com]
    Seriously, people. READ THE OP

  76. Allura says:

    Two points of information (and that’s all they are; I still think this is a horrible crime):

    1. The “container” is not what you think. Apparently they’re completely finished, furnished, etc as private apartments. It’s actually better to get one of the “containers” than the barracks-style dorms. She apparently felt she shouldn’t/couldn’t leave, which IS bad, but we’re not talking an empty box of metal; they’re just used as shells to create a fairly decent apartment (source is a few random soldiers who’ve seen them; I’ve also seen plans online for doing the same thing here, to make some cheap housing).

    2. Since she worked for a contractor outside the country, she’s on foreign soil and can only work within their rules. The Iraqis OUGHT to be investigating this story, etc, but unfortunately, it’s them or a civil suit. American law just isn’t applicable. Another reason they pay outrageously high salaries to folks working overseas.

    As I said, just points of information.

  77. Consumer007 says:

    Well, this is what happens when you vote Republican…women get gang-raped and beaten first and fired later, well okay, maybe just sexually harassed and fired here in the states…but you see their core “Christian” values at work universally…

    Let’s hear Ann Coulter and Bill O’Reilly defend this one…

    I hope she hires Gloria Allred.

  78. coolkiwilivin says:

    Only a democrat would turn the abuse and rape of a women into a cheap political shot. Anyone with a sense of justice knows this is wrong. Where is NOW or any of the “women” groups that wholeheartedly support the dems when women come forward to complain about Dems? Nowhere. NOW can’t even take a friggin stand on the women who was gang raped in Saudi Arabia and then sentenced to 200 lashes b/c its so tied to pc that it would be wrong to speak negatively to muslims. Give me a break, get off of dailykos and join the rest of here in the real world.