In a strange legal loophole, American companies—including those that receive government contracts such as Halliburton—can require their employees to sign contracts waiving their right to bring a civil trial against fellow employees that rape or otherwise sexually assault them. This egregious loophole was first spotlighted when Jamie Leigh Jones, a former contractor for one-time Halliburton subsidiary KBR, spoke out against her gang raped by fellow contractors, which took place on the 4th day of her job for KBR in Baghdad in 2005. Her contract and similar contracts block an employee from bringing suit in court by requiring binding arbitration out of court, rendering this private arbitration the victim’s only legal option. Shamefully, U.S. law allowed for this and the U.S. government paid hefty sums to the companies that invented and maintained these contracts.
Senator Al Franken (D-MN) pushed through an amendment to the Department of Defense Appropriations Act, 2010 on October 7 that takes a step toward closing this loophole. This amendment prohibits the U.S. government from contracting with companies that prevent their employees from accessing the U.S. justice system regarding rape and sexual assault claims. The main issue is that allowing private companies to present their employees with these contracts is repugnant to society’s interests in preventing and prosecuting rape and all violence against women. Using U.S. money to enlist the services of such companies flies in the face of laws against rape and violence against women and the Constitutional right to one’s day in court.
Strangely, 30 Republican senators opposed this amendment, and the amendment’s only opponents were Republicans. The amendment is an important and yet small and glaringly obvious move towards combating rape. Senators such as Jeff Sessions (R-AL) opposed what he called government interference in private contracts, arguing that “[t]he Congress should not be involved in writing or rewriting private contracts. That’s just not how we should handle matters in the United States Senate.”
This statement is a mischaracterization of the amendment. What the amendment does not do—but what some yet to be proposed piece of legislation should do—is prohibit these types of contracts when they interfere with civil suits regarding egregious crimes such as rape that all members of society are invested in eradicating. The amendment allows such contracts to persist; it simply bars government funding for companies that continue to contract in this manner. Thus, the claim that the private right to contract is interfered with rings hollow. But more importantly, there should not be and arguably is not a right to contract out of one’s right to bring a civil suit against rapists. No one would think that we should allow contracts barring suit for attempted murder, brutal beatings, child abuse, pedophilia, or other crimes we consider heinous. Why would be allow contracts that prohibit bringing rape and sexual assault into our justice system?
While work remains to be done to get rid of these types of contracts altogether on the grounds that they are repugnant to society’s interests in combating rape, it is certainly the right move for the U.S. government to stop funding companies that obstruct justice and sanction violence against women through these binding arbitration clauses. It is also a small victory in developing government regulation regarding the interaction between private companies and human rights.