No wonder that women that in the middle of girlfriend experience and or escorting must believe they are empowered, that it must be safer than other forms of prostitution – and that in many ways it is not prostitution.
To see it as prostitution, is to see your own terror, to know that punters have pre-planned to hurt you bad, to understand that there is always some manager/businessman/pimp profiteering from your hell.
That is too much for most prostituted women to bear – of course they make themselves dead to their own reality, of course they will speak of it as empowering and their free choice, of course they must believe without any real evidence that they are manipulating the men.
To know the cold and death-loving reality of escorting and or girlfriend experience is so terrible is can destroy the essence of the prostituted woman.
“Bringing Justice to Women of Burma”is a short film highlighting continued systematic and widespread rape against women and girls in Burma, in particular in the Kachin, Karen and Shan States and demands that General Than Shwe be tried by the International Criminal Court (ICC) for crimes against humanity.
The YSR government formally issued an order, famous as GO 421, that outlined who is to be considered a farmer and what is to be considered a genuine farmer suicide. Once that is established, the family gets one lakh rupees to be able to start life afresh with some livelihood activity and another 50,000 rupees is used to settle all outstanding loans.
The problem is that … [w]omen are not identified as farmers, especially because land is rarely bought or registered in their names.
Note: Following is a blog post I wrote last February after having received the press release which follows from the Karen Women’s Organization. The situation has, of course, come to a head in Burma. I am writing about it and wanted to provide this history, particularly of what has been happening to the women of Burma. — Heart
February12, 2007 Press Release
State of Terror, a report launched today by the Karen Women’s Organization, provides graphic evidence of the widespread terror tactics being employed by the military regime’s troops against women across Burma’s Karen State.
As the atrocities continue, the KWO appeals for concerted international pressure on the regime to bring about an immediate nationwide ceasefire and withdrawal of Burmese Army Troops from the ethnic states.
“We deeply regret the veto by China and Russia and SouthAfrica’s vote against the UN Security Council Resolution on Burma last month,” said KWO Secretary Naw Zipporah Sein. “It is equivalent to endorsing the regime’s terror campaign in Karen State. They are giving us a death sentence.”
The report documents 4,000 cases of abuse, including rape, murder, torture and forced labour, mainly over the past few years, in over 190 villages by troops from over 40 Burmese Army battalions.
Repeated incidents of gang-rape in 2006 reveal that the patterns of systematic sexual violence exposed byt he KWO in their 2004 report Shattering Silencesare still continuing.
Harrowing testimony in the report describes women seeing their children killed before their eyes, women used as human minesweepers and pregnant women suffering miscarriages while carrying heavy loads for the army.
Children who had levels of major PFCs that were twice as high in their blood at age 7 as their peers also had half the antibody concentrations for tetanus and diphtheria compared with the other children, a study reported by the most recent Journal of the American Medical Association has found. Those with the most exposure to PFCs by age 5 were significantly more likely to have insufficient protective antibody levels two years later, researchers found.
“The negative impact on childhood vaccinations from PFCs should be viewed as a potential threat to public health,” said study lead author Philippe Grandjean with the Harvard School of Public Health.
Grandjean appeared alarmed because routine childhood immunizations “are a mainstay of modern disease prevention.”
Researchers “were surprised by the steep negative associations, which suggest that PFCs may be more toxic to the immune system than current dioxin exposures,” said Grandjean.
This is not news to many of us. Immunizations may have been viewed as a “mainstay of modern disease prevention,” but some of us — mothers in particular – have known better for a very long time.
As an American woman, I have much in common with by far the majority of women throughout the world. If I were to gather with women from the Middle East, from Southeast Asia, from Eastern and Southern Europe, from South America, Central America, were language no barrier, and if we wanted to share our lives, we would find we shared much common ground.
As a female, girl and woman, all of my life, I have been objectified, othered, and expected to serve men, over the entire course of my life, and punished in various ways for refusing.
Growing up in a family of immigrants and third-generation Americans who revered the ways of the Old Country, I learned my place as a girl child early on. As a girl it was my job to cook and to clean for men, to serve them dinner and wash the dishes afterwards, to launder, fold, iron their clothes, to prepare their meals. I was to smile, be kind, be friendly, be sweet, mind my manners, speak softly, dress femininely, like dolls and pink and all of the things girls and women are supposed to like. To deviate or challenge any of the above brought swift censure, shunning and punishment.
I am a survivor of rape, sexual assault, groping, both in public places and in private, “flashing;”
I am a survivor of battering, severe domestic violence.
I am a survivor of ongoing sexual harassment — in the streets, on the job, in my home, in the marketplace.
I have been spiritually, emotionally, verbally, mentally, and physically abused in fundamentalist religion.
I am a mother.
I have suffered miscarriages.
I have had an abortion.
I am the mother of 11 children, all birthed from my body.
I have breastfed all of my children.
I have suffered all of the indignities apportioned to mothers, in particular single mothers and mothers of very large families.
I have suffered the insults and indignities of patriarchal medicine.
I have worked two and three jobs simultaneously to support my family over, by now, 36 years.
I talk a lot about my magazine and my writing because I’m proud of that work. But over the course of my life, to earn money to support myself I have also picked berries in local farms, weeded rich folks’ yards and farms, cleared brush from farms, picked brush (look it up, it’s hard work), cleaned houses, both as a paid housekeeper and as the unpaid caregiver for my and others’ children and families, grown fruit, vegetables and herbs for sale, made soap and other products for sale, worked as a bus girl, a waitress, and a cocktail server, worked as an office clerk, a secretary, a caregiver to babies and children.
I have been coerced into marriage.
I have been excommunicated and subjected to discipline for disobedience to patriarchal religion.
I have been subjected to the patriarchal indignities of the divorce process.
My worth has been consistently evaluated on the basis of my physical appearance.
I have had to feed my family of 10 and 11 on less than $200 per month. (And I did it.)
I have had to find ways to keep my family warm without a source of heat in the house.
I have been fired because I was pregnant and not hired because I was pregnant.
I experience fear at night in dark public places when I am alone.
In the normal course of events, I’m a pro-anger kind of a gal. I came up through the feminist ranks in the seventies, when we were energized by the realization that all our lives, we women had been told to be ‘nice’, sweet, to placate the guys and not get them riled up. If we got angry, we either looked ‘cute’ or were unattractive raging b-words (rhymes with Witch). Anger was a rational response to the constrictions and dis-empowerment we faced as women, and it became a driving force in our efforts for cultural change. Ironically, one of those results is Sarah Palin’s candidacy. It is a triumph of feminism that we have so changed the culture in this country that the same kinds of reactionaries that wouldn’t have voted for a women in 1968 and would have opposed a woman voting in 1908 now have to turn to one to energize their base.
Anger, however, is a dangerous emotion. Like fire, to which it is often compared, it can regenerate the forest when it burns through low and fast, or jump to the crowns of the trees and burn thousands of acres, devastating life and land. McCain and Palin have been piling up the trash to start a burn pile on a red flag day, when economic drought and winds of fear and panic are whipping it out of control. For that, they bear a huge responsibility. They have deliberately used innuendos, outright lies, and personal attacks to create an incendiary atmosphere. Palin has stood silent while her supporters chant to kill her opponent! That is tantamount to instigating and condoning political violence, if we must speak of ‘terrorism’. McCain has protested some of his followers’ excesses, but in condoning the strategy that feeds on fear, suspicion and thinly veiled racism, his attempts are like trying to beat out a few sparks in the tall grass after he has fed the blaze. Those of us who lay claim to some form of spiritual leadership should absolutely condemn the tactics of personal attack.
We should call our politicians and our communities to think, speak and act from our best selves, not our worst, from respect and compassion, not from stoked-up rage and hate. Now, I grant you, it’s not going to mean much to McCain or Palin to learn that a Witch thinks they are behaving in a despicable and immoral way. Might even encourage them. But I call on you, sisters, brothers and freres of other faiths, especially you Christians whose voices will carry more weight, to speak out strongly in condemnation of the politics of hate. Speak to the McCain campaign, to your own congregations and coreligionists. Become the dampening rain that can douse this particular fire. A raging wildfire creates its own wind and weather, and feeds on itself. Regardless of your political convictions, hatemongering hurts and endangers us all.
[In early March], more than 500 armed homeland security officers descended upon Michael Blanco Inc. The owner of the factory, and a few of his senior staff, were arrested for hiring undocumented workers and creating false documents. They were out on bail and home with their families that night.
Approximately 350 employees, mostly mothers with young children, were swept up in the raid, shackled together in groups of three by their wrists and ankles and marched to buses bound for Fort Devens, 100 miles away. Without any legal representation or due process, these workers were asked for their immigration documentation and encouraged by immigration officers to choose voluntary deportation regardless of whether an immigration application was in process.
The irony of the story is that these employees were manufacturing the materials that keep US soldiers in Iraq safe from harm. Their skills as craftspeople served our country at a time of great need. Yet instead of being treated like heroes for their role in the war effort, they and their families are treated like traitors.
President Bush and his administration have decided to prioritize the detention and deportation of young mothers at taxpayer expense, and at the expense of our troops.
In Sokari’s most recent blog post she links to blogger Chatoyance who links to The Individual Voice who recently posted the entire text of Doris Lessing’s acceptance speech after Lessing had won the 2007 Nobel Price for Literature. Lessing writes about the hunger of Zimbabwean children and adults for books and of the crucial and central need for writers and publishers in Zimbabwe, throughout Africa and throughout the world. Lessing said:
I have seen a Teacher in a school where there was no textbooks, not even a bit of chalk for the blackboard – it was stolen – teach his class of six to eighteen year olds by moving stones in the dust, chanting “Two times two is…..” and so on. I have seen a girl, perhaps not more than twenty, similarly lacking textbooks, exercise books, biros – anything, teach the A, B, C in the dust with a stick, while the sun beat down and the dust swirled.
We are seeing here that great hunger for education in Africa, anywhere in the Third World, or whatever we call parts of the world where parents long to get an education for their children which will take them from poverty, to the advantage of an education.
Our education which is so threatened now.
I would like you to imagine yourselves, somewhere in Southern Africa, standing in an Indian store, in a poor area, in a time of bad drought. There is a line of people, mostly women, with every kind of container for water. This store gets a bowser of water every afternoon from the town and the people are waiting for this precious water.
The Indian is standing with the heels of his hands pressed down on the counter, and he is watching a black woman, who is bending over a wadge of paper that looks as if it has been torn out of a book. She is reading Anna Karenin.
She is reading slowly, mouthing the words. It looks a difficult book. This is a young woman with two little children clutching at her legs. She is pregnant. The Indian is distressed, because the young woman’s headscarf, which should be white, is yellow with dust. Dust lies between her breasts and on her arms. This man is distressed because of the lines of people, all thirsty, but he doesn’t have enough water for them. He is angry because he knows there are people dying out there, beyond the dust clouds. His brother, older, had been here holding the fort, but he had said he needed a break, had gone into town, really rather ill, because of the drought.
This man is curious. He says to the young woman. “What are you reading?”
“It is about Russia,” says the girl.
“Do you know where Russia is?” He hardly knows himself.
The young woman looks straight at him, full of dignity though her eyes are red from dust, “I was best in the class. My teacher said, I was best.” Read the rest of this entry →
I’ve decided to return to blogging after a long rest. I hope eventually to restore all of my post-2008 posts as well as the pre-2008 posts I’ve already restored.
The death of my 25-year-old daughter in 2010 changed many things for me. For a while I thought I’d let my blogs and internet presence, in general, go, so I let my domain name lapse and stopped paying my webhost, who finally deleted my womensspace.org blog. I had backed up my womensspace.org web pages, but on hard drives I’m not using anymore because the computers to which they were connected are broken. I hope to get these hard drives installed on another desktop computer at some point so that I can restore all of my more recent posts. I will also be mapping my old womensspace.org domain to this blog, so that will soon be my address again.
“These women were shunned by two eras,” Yang says. “When they were young, footbinding was already forbidden, so they bound their feet in secret. When the Communist era came, production methods changed. They had to do farming work, and again they were shunned.”
Wang Lifen, above, now 79, was just seven years old when her mother started binding her feet: breaking her toes and binding them underneath the sole of the foot with bandages. After her mother died, Wang carried on, breaking the arch of her own foot to force her toes and heel ever closer. Now 79, Wang no longer remembers the pain.
“Because I bound my own feet, I could manipulate them more gently until the bones were broken. Young bones are soft, and break more easily,” she says.
At that time, bound feet were a status symbol, the only way for a woman to marry into money. In Wang’s case, her in-laws had demanded the matchmaker find their son a wife with tiny feet. It was only after the wedding, when she finally met her husband for the first time, that she discovered he was an opium addict. With a life encompassing bound feet and an opium-addict husband, she’s a remnant from another age. That’s how author Yang Yang, who’s written a book about them, sees these women.
Major Witt filed a lawsuit challenging the “don’t ask, don’t tell” policy as a violation of the Constitution’s due process and equal protection clauses. In 2006, Judge Ronald B. Leighton, of Federal District Court in Tacoma, Wash., dismissed the case. On Wednesday, a three-judge panel of the appeals court, the United States Court of Appeals for the Ninth Circuit, disagreed, reinstating much of Major Witt’s suit and returning the case to Judge Leighton for further proceedings.
The decision was notable for the standard the appeals court instructed Judge Leighton to use in considering the case. The panel said judges considering cases claiming government intrusion into the private lives of gay men and lesbians must require the government to meet a heightened standard of scrutiny.
The usual standard is called “rational basis” review, which merely requires the government to offer a rational reason for a law or policy. The rationale offered by Congress for the “don’t ask, don’t tell” policy is that openly gay and lesbian service members threaten morale, discipline and unit cohesion. Several courts have sustained the policy as rational.
On Wednesday, Judge Ronald M. Gould, joined by Judge Susan P. Graber, ruled that in cases like Major Witt’s, the government must go further than simply showing a rational basis for its action, instead proving in each case that an important government interest is at stake and that the intrusion into the plaintiff’s private life significantly advanced the interest.
SEATTLE (AP) – A lawyer for a highly decorated military flight nurse who was fired for being gay asked a federal appeals court panel Monday to reinstate her lawsuit against the Air Force, saying her discharge violated her right to be free from governmental intrusion in her private life.
Maj. Margaret Witt, 42, was suspended in 2004 after the Air Force received a tip that she had been in a long-term relationship with a civilian woman. She was honorably discharged last month, after having put in 18 years – two short of what she needed to receive retirement benefits.
Attorney James Lobsenz asked the three judges from the 9th U.S. Circuit Court of Appeals to invalidate the 1994 “don’t ask, don’t tell” policy or, at least, reinstate Witt’s lawsuit. “Don’t ask, don’t tell” prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or engage in homosexual activity.
Lobsenz argued that the Supreme Court’s 2003 ruling striking down anti-sodomy laws in Texas recognized a “fundamental right” of consenting adults to be free from governmental intrusion into their bedrooms. The relationship was with a civilian woman and took place in their home in Spokane, hundreds of miles from McChord Air Force Base, Witt’s duty station in Western Washington.
“At all times she kept her sexual life private,” Lobsenz said.
He also noted that even heterosexual child molesters are allowed to prove, on a case-by-case basis, that they should not be discharged, but gays who engage in homosexual conduct are automatically excluded.
Monday’s arguments centered on the ruling in the Lawrence v. Texas case, and whether it in fact established a “fundamental right,” which would require a higher burden for the government to show that “don’t ask, don’t tell” is constitutional.
Jonathan F. Cohn, a deputy assistant attorney general with the Department of Justice, acknowledged that the Texas case is not “a pinnacle of clarity,” but said the justices know full well the significance of the phrase “fundamental right” and didn’t use it in their ruling: “The court very clearly stops short of … recognizing a fundamental right.”
And if there’s no fundamental right, Cohn said, the court should defer to the government’s argument supporting “don’t ask, don’t tell”: that having gays in the armed forces could be disruptive.
Witt joined the Air Force in 1987 and switched from active duty to the reserves in 1995. As a nurse, she cared for injured patients on military flights. She was promoted to major in 1999, and she deployed to Oman in 2003 in support of the U.S. invasion of Afghanistan. A citation from President Bush that year said, “Her airmanship and courage directly contributed to the successful accomplishment of important missions under extremely hazardous conditions.”
Her suspension the next year came during a shortage of flight nurses and outraged many of her colleagues, one of whom, a sergeant, retired in protest, saying he no longer wished to be part of the military. The two Air Force officers who met with Witt in 2004 to tell her she was being fired, Col. Jan Moore and Maj. Verna Madison, said they were terribly upset about it.
Witt, who is backed by the American Civil Liberties Union, attended Monday’s arguments wearing her uniform. She declined to speak with reporters.
Her lawsuit is one of two that have been argued this year in federal appeals courts challenging the “don’t ask, don’t tell” policy.
The other case was argued in Boston in March. Twelve gay and lesbian veterans who were dismissed under “don’t ask, don’t tell” asked a federal appeals court to reinstate their lawsuit, arguing before the 1st U.S. Circuit Court of Appeals that the policy is comparable to government-sanctioned discrimination against blacks.
Almost everyone has heard of Oskar Schindler (Schindler’s List) and his heroic rescue of 1,200 Jews during Hitler’s reign . Not so many know about Irena Sendler, above, who as a 29-year-old Polish social worker ultimately rescued 2,500 Jewish children from Nazi occupiers of Warsaw, Poland, who had built a wall and a ghetto for the Jews.
Sendler had been influenced by her father, a doctor, who defied the Nazis and treated sick Jews during outbreaks of typhoid fever. Her father died of typhoid fever himself when Sendler was 9 years old.
Sendler in 1943 shortly after escaping from Pawiak prison.
Social workers were not allowed in the Warsaw ghetto, but Sendler went in anyway, along with 25 comrades she had recruited to help her, 24 of them women. They called themselves “Zegota”. Sendler and her sisters (and one brother) went into the Warsaw ghetto, risking their lives — Nazi orders were to shoot non-Jews and anyone who aided them on sight — and rescued children, carrying them out in baskets, boxes, wrapped up in packages, in coffins. Their parents, in anguish, would ask Sendler whether she could ensure their children would live. Sendler could not. But she knew and told them that if she did not carry the children to safety, they would surely die.
The jars containing names and information about the rescued children were buried here in Sendler’s friend’s garden, under the tree above. Her friend’s daughter, Hanna Piotrowska, who was 12 years old at the time her mother and Irena buried the jars, still lives at this residence.
Sendler found safe places for all of the 2,500 children she rescued – in orphanages, in private homes. She gave them non-Jewish aliases, carefully recording their true names on thin rolls of paper, hoping she could eventually reunite them with their families. She preserved the rolls of paper in jars she buried in a friend’s garden.
In 1943, Sendler was captured by the Nazis, imprisoned and tortured over many days. However brutal the torture – Sendler’s feet and legs were broken during one torture session and she passed out from the pain – Sendler never disclosed the names of her comrades, the location of her buried bottles containing the names of rescued children, or anything about the children. Eventually she was able to escape.
When the war ended, Sendler unearthed her jars and tried to reunite the children she had rescued with their families. Most of their families were dead. Many of the children she rescued were adopted by Polish families. Some went to Israel.
Megan (Felt) Stewart (above) stumbled on Sendler’s story as a 9th grader in Kansas, wrote a play about it, and made the world aware of what Sendler had done.
Although in 1965, Sendler was recognized by Yad Vashem, Israel’s Holocaust authority, as a “Righteous Gentile”, an honor given to non-Jews who risked their lives to save Jews during the reign of the Nazis, comparatively few knew of Sendler’s work until 1999, when a ninth grade girl in Kansas, Megan Felt, and several of her girlfriends, stumbled across an article about Sendler. Felt wrote a play about Sendler called “Life in a Jar,” and eventually traveled to Poland to meet her shero. Since 1999, Felt’s play has been presented over 250 times in three countries. Felt and her friends created the Irena Sendler Foundation, raising money to pay for Sendler’s care as an elder woman. In 2006, Sendler was nominated for a Nobel Peace Prize.
Sendler passed over at 98 years of age yesterday, May 12, in Warsaw Poland, of pneumonia. She leaves a daughter and a granddaughter to mourn.
Note: I was going to post this as a comment to the original “Intentional Sex Torts” thread, but I couldn’t import the formatting (I formatted it inside of a “New Post” box on my dashboard) and don’t have time to reformat. And, maybe it’s better to start a fresh thread anyway, for several reasons.So, here it is. Deana Pollard Sacks’ article in full is here. Her post at Feminist Law Professors is here. – Heart
I read through this thread reasonably carefully last Saturday and excerpted some things which I thought were important to talk about. Before I composed a response, though, Ann Bartow posted the link to Deanna Pollard Sacks’ article, which I have read. I thought it was great that Sacks’s actual article addressed each of the points I thought deserved discussion.
Supe: Shouldn’t each party perform due diligence before we hold him liable for claiming he’s rich or whatever?
Based on my reading of Sacks’ article, yes, she says each party should perform due diligence before we hold him liable for having violated a woman’s (or a man’s) sexual autonomy. However:
An intentional tort action should lie when the facts sufficiently prove that one romantic partner misappropriated another’s sexual autonomy. Battery is the best intentional tort theory for cases of sexual choice misappropriation.
Battery protects the individual’s unfettered choice to determine who touches his body and is protected in recognition of its core value to American concepts of freedom and self-actualization. Its elements are amenable to proof in the context of sexual deceit by reference to existing battery doctrine defining “offensive” contact and “consent.”
Dignitary harm is presumed to flow from interference with bodily autonomy, because the right of bodily autonomy is considered integral to self-determination and therefore fiercely protected. Compensatory damages for battery are most comprehensive, and include general damages for emotional distress and mental suffering such as fear, anxiety, indignity, or disgrace in addition to economic losses.
Plaintiff’s right of autonomy even includes a zone around the plaintiff’s actual physical body:
“Since the essence of plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed.” Thus, grabbing another’s plate, or hat, or garment, or even blowing smoke into another’s face, may be actionable.
Plaintiff need not know that the contact is offensive at the time of the contact, because liability is based on the defendant’s “intentional invasion of [plaintiff’s] dignitary interest in the inviolability of his person and the affront to [his] dignity . . . . This affront is as keenly felt by one who only knows after the event that an indignity has been perpetrated upon him as by one who is conscious of it while it is being perpetrated.”
Two elements must be proven to establish a claim for battery: intent to cause a harmful or offensive contact, and a resulting harmful or offensive contact. In sexual choice misappropriation cases, the defendant usually does not intend to “harm” the plaintiff’s body, but rather, seeks sexual gratification to the detriment of plaintiff’s fairly informed decision. These cases therefore require a showing of intent to “offend.”
Consent is the usual defense, since plaintiff usually consented at the time of sex, but later learned facts that arguably vitiate consent, making the contact “offensive” to plaintiff in light of after acquired Existing authority provides two separate bases for finding conduct to be “offensive,” which are referred to herein as actual and constructive intent to offend. First, if plaintiff clearly manifests a subjective desire to avoid defendant’s contact for any reason, defendant’s contact thereafter is per se offensive because choices pertaining to who touches one’s body are unfettered and are not subject to review based on reasonableness or sexual norms. Thus, if a person actually expresses his sexual preference to the defendant, or the preference is otherwise actually known to the defendant, and such preference is disregarded by the defendant in order to obtain consent to sex, the defendant will be held to have intended offensive contact because she has knowingly undermined plaintiff’s right of sexual autonomy.
Similarly, if the defendant obtains consent with actual knowledge of plaintiff’s incapacity to consent, she should be held to have intended offensive contact based on her knowledge of a lack of true consent. This is actual intent to offend.
Second, the Restatement’s conception of “offensive” contact includes contact that violates social usages that are “prevalent” at the time and place of the contact. That is, offensive contact may be established by social standards that bind the defendant constructively, regardless of her actual intent to offend. Some common and minor touchings may be presumed acceptable based on social usages, such as tapping another on the shoulder, touching another’s sleeve, brushing past another in a crowded subway, or shaking hands upon introduction. This reflects a common-sense approach to inevitable contact in a crowded society. However, if defendant perpetrates physical contact that exceeds the bounds of ordinary social usages, she will be held to have done so with constructive intent to offend
The concept of constructive intent to offend is consistent with other intentional tort law doctrine. For example, misappropriation for purposes of a conversion claim is established upon proof that defendant exercised control over a chattel owned or possessed by plaintiff inconsistent with plaintiff’s property rights, even if defendant is unaware that her actions violated plaintiff’s rights: “The focus of inquiry is not on the defendant’s conduct, but on the plaintiff’s property rights.”
No proof of “wrongful” intent is required; defendant may even be operating under a mistaken belief that she owned the property. This is the same type of minimal intent required for trespass to land: a simple, perhaps innocent, intent to enter land owned by plaintiff establishes a case because the plaintiff’s property rights have been violated, whether or not defendant intended any violation. These rules place an onus on all persons to exercise care to avoid trampling on others’ property rights, which translates into a due diligence duty to determine ownership, because ignorance is no defense. Constructive notice is sufficient to warrant liability for a variety of intentional torts.
Surely a person’s right of bodily and sexual autonomy deserves the same type of protection against others’ infringement. Providing such legal protection validates the Restatement’s conception of “offensive” conduct: bodily autonomy must be respected, and it is infringed when defendant fails to abide by minimal social standards of respect for others, regardless of whetherdefendant subjectively intended to offend the plaintiff or interfere with his autonomy. Constructive intent to offend has already been applied in romantic touching battery cases: a well-intentioned kiss is actionable in the absence of plaintiff’s consent because it exceeds what is presumably allowed without consent in our society. (Bolds mine.)
I2XU: I’ll break it down for you very simply. The legislation adopts a “reasonable person” standard. This is one of the fuzziest, fact based inquiries in our legal system. What are lies that would make a reasonable person withdraw consent if they knew the truth? Who gets to decide what lie vitiates consent?
Consent is a defense to battery, provided it was reasonably informed and not induced by fraud. Consent is vitiated by fraud if plaintiff’s consent was made in reliance upon one or more untrue facts that were material to plaintiff’s decision to consent, and defendant was aware of plaintiff’s reliance on material, untrue facts.Consent should also be vitiated in the absence of actual fraud where plaintiff’s consent was uninformed because he had no reason to know of risks within defendant’s knowledge that defendant failed to disclose despite constructive knowledge that the risks were material to plaintiff’s decision to consent. This “uninformed consent” analysis adopts the Restatement’s constructive intent to offend analysis. These two bases for vitiating consent will be discussed separately.
1. Fraud Vitiates Consent.
For consent to be vitiated by fraud, a fact finder must determine that plaintiff reasonably relied on one or more false facts that were material to plaintiff’s decision to consent. In addition, defendant must be guilty of lying about, or concealing, the material facts in order to gain plaintiff’s consent. Thus, for example, consent to enter another’s land based on false pretenses invalidates consent, resulting in liability for trespass to land. In economic fraud post laissez-faire, materiality is broadly construed in favor of plaintiff’s autonomy in making economic decisions based on a fair and adequate presentation of the facts relating to the transaction.
Fraud related to physical risks has been held to vitiate consent in battery cases. For example, failing to inform another that brass knuckles would be used during a fight vitiates consent to the fight because the consent was grounded in a mistaken understanding about the degree of risk. In the sexual context, failure to disclose physical risks can vitiate consent; a number of cases have held that where plaintiff mistakenly believes defendant to be free of sexual disease, or infertile, and that defendant knows of plaintiff’s mistaken belief and does not correct it, consent is vitiated, resulting in liability for battery In certain types of sex tort cases involving dignitary and emotional risks only, fraudulently-induced consent has been held to vitiate consent. For example, if a medical professional represents that she is touching the plaintiff’s genital area for medical purposes when in fact she is seeking sexual gratification, plaintiff’s consent to the physical contact is invalid. The idea apparently is that the plaintiff in such cases did not consent to sex at all, but was fraudulently induced to consent to what he believed was necessary medical treatment. The fact remains that, in these cases, when consent to sexual touching is induced by fraud relating to the purpose of the touching, and the true purpose is defendant’s sexual gratification, consent is vitiated by fraud in the inducement with or without resulting physical injury. Yet, in the romantic context, where plaintiff is fraudulently induced to consent to sex, and only dignitary and emotional risks are at stake, courts have frequently reasoned that fraud does not vitiate consent as a matter of law due to a lack of standards for materiality. However, materiality is an issue properly decided by a jury or other fact-finder, and standards for materiality are readily available by reference to existing fraud case law.
Materiality requires that: the false statement upon which plaintiff allegedly relied must relate to a past or present fact; must relate to a material aspect of the agreement, as opposed to a collateral aspect; must not be mere “puffing;” and must not be a mere prediction of future events over which defendant lacks control. Thus, statements not amenable to factual proof, such as “I love you” or “You are the one for me” are akin to puffing or prediction, and should not establish fraud in the inducement of sex as a matter of law. However, there are other types of statements that are amenable to factual proof, such as marital status, or whether defendant is currently sexually involved with other persons. Misrepresentations regarding such factual matters create a relatively simple jury question regarding materiality and validity of consent.
The issues of fact involved in fraudulently-induced sex cases in the romantic context are no more difficult to decide than issues in other types of fraud cases where a jury must determine whether, under all of the circumstances, a statement is factual, or mere puffing, prediction, or opinion. Whether plaintiff justifiably relied, i.e., whether he was on notice somehow of the misrepresentation but failed to heed such notice, is also a jury question. The fraud/mistake exception to valid consent is often grounded in defendant’s intentional misrepresentation of facts in order to gain consent, but could also be based on defendant’s failure to speak up regarding material information of which she is aware plaintiff is relying, and which is inaccurate. Defendant’s intentional misrepresentations or omissions of fact regarding marital status, extramarital affairs,136 relationship status, family background,138 or other objective, material factual aspects of her life should vitiate consent in order to protect the plaintiff’s sexual autonomy, provided causation is established.139 The law should protect personal choice in sexual matters consistent with the longstanding rule that fraud vitiates consent, and leave case-by-case decisions to a finder of fact, as in other types of intentional tort cases.
2. Uninformed Consent.
Consent may be invalidated after the fact because it was “uninformed” at the time it was given. Informed consent requires informed persons in trusting relationships to disclose all material information that reasonably could impact another’s consent to a transaction prior to closing the transaction, or else the consent is invalid. This fiduciary-type disclosure requirement is no novel concept in tort law, and manifests in many forms, such as requiring disclosure of latent defects in real estate sales, and requiring warning labels on dangerous products. The tort duty to disclose information to another is based on the concept that a person with superior knowledge or information should not abuse her superior position to the detriment of another, or cause another to accept a transaction he would have rejected had she made fair factual disclosure. In the context of battery law, informed consent has been applied only in the medical context.142 Informed consent requires that medical professionals provide adequate information regarding risks that “a reasonable patient would consider in deciding whether to undergo the medical procedure.” Although usually analyzed as medical malpractice cases, a number of courts have recognized that since the patient’s right lies in self-determination, whether information should have been disclosed should turn on a legal test for materiality, not a medical negligence standard. The patient has the right to weigh his subjective, individualized fears and values against the risks involved, so the personal, not medical, question should be reserved to the patient alone. What must be disclosed for informed consent is therefore an issue to be determined by a finder of fact, using a reasonableness standard that includes
defendant’s knowledge of plaintiff’s particular fears, preferences, and values. A critical issue in informed consent jurisprudence is establishing a duty to disclose adequate information prior to obtaining consent. The informed consent rule has been applied to doctors and other medical professionals for two reasons. First, a confidential, fiduciary relationship exists between a doctor and rise to disclosure obligations. Second, a doctor has superior access to information that a patient needs in order to make an informed choice, but the patient may not even know what questions to ask. Thus, at least some courts will allow an action for battery against a doctor when the doctor nonnegligently performs a procedure but failed to disclose material risks that a reasonable patient would want to know prior to consenting. Fraud or mistake
need not be shown in order to vitiate consent because plaintiff is entitled to rely on fair interpersonal dealings and candid disclosure, to protect his right of selfdetermination. A similar expectation of candor requiring informed consent may be appropriate between sexual partners, considering the high emotional and physical risks involved in sexual intimacy and the public policy favoring protection of sexual autonomy. Whether a confidential relationship exists should be a question of fact, depending on the circumstances involved, such as length and nature of the sexual relationship. A sexual decision may present a more compelling case for applying the doctrine of informed consent than some medical decisions. In many circumstances, medical intervention is necessary for proper health or survival. Therefore, as a practical reality, a patient’s decision may not be impacted by a lack of full disclosure of all the risks. That is, but for the lack of disclosure, the patient probably would have made the same medical decision out of necessity. The sexual decision, on the other hand, is always entirely discretionary with no physical risks resulting from refusal to consent: cause-infact is more clear in the sexual context. What information must be disclosed in order for consent to be sufficiently informed should also be a reasonable/materiality fact issue, based on all of the evidence. Adopting this informed consent approach would create convergent analysis between the prima facie element of intent to offend grounded in social usages and the exception to consent based on a lack of information: both are grounded in reasonable social expectations of candor and respect for others’bodily autonomy. In addition, both place an onus on defendant to avoid misappropriating plaintiff’s right of self-determination, similar to the onus placed on defendants in other intentional tort matters. This proposed uninformed consent analysis is also consistent with the consent counterpart in negligence law: consent that is not adequately informed should not constitute a defense to battery any more than assumption of the risk should bar a negligence claim when the party against whom the defense is asserted voluntarily encounters the risk without understanding it.
Informed consent analysis is necessary in sexual autonomy infringement cases because there are subtle forms of sexual misappropriation that flout social expectations and convert plaintiff’s sexual choice, yet are not amenable to the proof requirements for fraud or mistake to vitiate consent. The fraud/mistake rule places a burden of proof on plaintiff to demonstrate defendant’s actual knowledge that plaintiff’s consent was based on a factual mistake, which proof is not necessary under informed consent analysis. Plaintiff’s burden of proof that consent was invalid should not be greater than his burden of proof on the element of intent to offend: since social usages set the standard for expectations regarding what contact is presumably “offensive” (to sustain the prima facie case intent element per the Restatement), plaintiff should be allowed to rely on social usages regarding reasonable expectations of disclosure to meet his burden of proof that consent was not reasonably informed and therefore invalid.
Supe: Do you really think that people used to think it was moral for husbands to beat and force sex on their wives? I doubt many people actually thought that way. Just because people turn away from something bad doesn’t mean that they think it’s okay. Most often the law butted out of those instances because the home was something sacred that the law shouldn’t invade. People didn’t think violence was okay; they just didn’t want to get involved in domestic disputes.
I promise you, Supe, only those who weren’t touched by marital rapes and “domestic” violence so-called wanted society/lawmakers to “butt out.” I also promise you that those who were being raped and beaten by husbands wanted laws to protect them.
Not only did people think domestic violence was okay, at various times and in various venues, laws have set forth, for instance, precisely what implements men were allowed to use to beat their wives. Usually men did not openly state it was all right for wives to be raped. Instead they framed the issues in terms of the “right to consortium,” i.e., in terms of the wife’s marital duties or obligations. And women might not openly state it was all right for them or other women to be raped. They would frame the issues in terms of the obligations they had as wives to provide sex for husbands. No matter what words or terms we use, sex that is not wanted is rape. If lawmakers turned away from this kind of rape because the home was sacred, they were in fact stating that within the home, rape was acceptable in a way it was not outside the home. They did in other words think it was “okay.”
I2XU: Do we arrest and prosecute a janitor for lying to a person about his or HER job? Will the janitor be convicted? The answer is yes if a reasonable person would not consent to sex with him or HER knowing the truth.
I think Sacks covers this question in the quote I bolded above about materiality.
Supe: Still, the point I was attempting to make with my first post was that I am not sure what harm it is trying to prevent….I was merely trying to address what I perceived was the harm that the law sought to prevent, which I hypothesized might be a woman getting pregnant.
In the typical sexual deceit case, the plaintiff learns some time subsequent to the sexual contact that his consent to sex was induced by deception. In general, the issue of whether fraud vitiates consent to physical contact after the fact is a question of fact to be determined in accordance with all of the evidence. However, when a person learns of fraud in the inducement of sex after the fact, the established fraud exception to consent has generally been disregarded, based on the “privacy” of sexual negotiation and the supposed “difficulty” in deciding whether the fraud or manipulation involved was sufficiently material to vitiate consent. This may explain why fraud-based sexual battery claims resulting in a sexual disease have been much more successful than fraudbased sexual battery claims where no disease was transmitted: it seems objectively obvious that sexual disease would materially impact sexual consent. Courts seem uncomfortable going to trial in sexual deceit cases lacking tangible physical injury.
…The conflict in the case law reflects the gray areas created by the unfortunate reality that both men and women lie about various factual aspects of their lives in order to obtain, or keep, sexual relationships. The majority rule in sexual deceit cases fails to protect personal choices regarding sexual contact. The general rule is that sexual deception and manipulation, no matter how outrageous, intentional, or malicious, is not actionable unless plaintiff suffers sexual disease or other physical injury. The normative impact is that it is acceptable to manipulate others’ sexual choices through fraud, deceit, or a lack of common decency. Judges’ views of these cases involving “only . . . an ordinary broken heart” fail to recognize the very real, albeit intangible, injury that often results from deceit in sexual relationships. The loss of an intimate relationship can cause serious emotionaland psychological distress, even in the absence of disease. symptoms such as sleeplessness, panic attacks, loss of appetite, and deep depression are not uncommon. Betrayal in intimate relationships can cause lifelong emotional scars and permanent pain, including a lifelong inability to be intimate because of an inability to trust. The emotional fall-out from deception in the most intimate of personal relations may have lasting consequences not just for the deceived person, but for those emotionally attached to him who experience emotional pain vicariously, such as spouses, children, siblings, and parents. Intentional sex tort law should be reformed to protect more effectively sexual autonomy and the emotional and other harm resulting from its infringement.
Supe: I’m rather astonished that you think it’s find to get enraged about an argument simply because it is in favor of a privileged position.
Theoretically, men and women are supposed to enjoy equal protection under the laws of the land. Where the law privileges men over women, the goal is to rectify that particular imbalance or inequity, wouldn’t you say? As opposed to defending a position that defends privileges men enjoy at women’s expense.
Supe: I2XU already mentioned one for the child rape scenario, which highlights one of the odd results that could occur under this legislation.
This is what I2XU said:
What does happen often is a sexual predator preying on the vulnerability and insecurities of a child to “persuade” the child to have sex with him. And we have recognized that we need our legal system to disregard the scienter of the child and focus solely on what act was committed. So, in having sex with 14 y/o, 19 y/o above is guilty of the offense, regardless of what was in either of their minds. This is a necessary result if we want our laws to protect children from those who prey on them.
Now consider this exchange occurred in a jurisdiction with the present law in effect. Both 19 y/o and 14 y/o would be guilty of rape. No reasonable person would have sex with a 14 y/o knowing that doing so would be 1. disgusting; and 2. illegal. So, but for 14 y/o’s lie, 19 y/o would not have had sex with him or her. So, a bizarre result obtains. Both have raped each other. Neither one has consented to sex. 14 y/o can’t consent, and 19 y/o presumed consent has been vitiated by 14 y/o’s lie. I hope this example illustrates the absurdity of the present law.
Statutory rape would still be statutory rape. As both you, Supe, and IX2U have stated, underaged persons cannot legally consent to sex. The fact that the 14-year-old lied would only be at issue if 14-year-olds could legally consent to sex with persons over a year or two older than them, and if that was the law, it would need to be changed, I’d say, but I doubt that is the law in any of the states.
Why are you injecting gender into the law? It is a law written without specification of gender. I don’t mean to disparage how a woman might read this, but the main consideration is how legal personnel (both women and men) would read the law. I articulated above how legal people read laws, and these are the people who apply the law. Since legal people apply the law, their reading is all that ultimately matters in determining who gets punished for breaking this law.
Not really. Juries also determine who gets punished and who doesn’t. I would imagine that if laws such as these are widely enacted, quite often plaintiffs (and for that matter, defendants) would ask for jury trials, meaning everyday citizens would participate in determining how the laws would be applied and understood, although they would, of course, be bound by jury instructions and would be instructed as to the law itself throughout the trial.
The law or proposal as Sacks presents it is gender-netural. The following is from footnote number 12:
It has been argued that gender-neutrality is not possible, and that “gender neutrality just masks systemic oppression.” See Leslie Bender, Teaching Torts As If Gender Matters: Intentional Torts, 2 VA. J. SOC. POL’Y & L. 115, 115-117 (1994). Catharine MacKinnon has argued that women are the group from whom “sexuality is expropriated.” See Catharine MacKinnon, Feminism, Marxism, Method and the State: An Agenda for Theory, 7 SIGNS 515 (1992). However, informal research indicates that both men’s and women’s sexual choices are misappropriated in today’s world, such that both genders deserve protection. See, e.g., infra note 50. Men’s and women’s damages claims may be conceived differently. Thus, although it may be true that the overwhelming majority of emotional distress claims have arisen from harmful contact by men, rather than women,” see Bender, supra at 147-148, harm to men resulting from sexual deceit may be described by men more commonly in terms of financial losses. For example, based on my own conversation with dozens of men about this topic, their “distress” over deceit in sexual relations often centers on financial investments in relationships that they entered into based on a woman’s misrepresentations, such as by providing financial support in an agreed-upon monogamous relationship and later discovering that the woman is sexually involved with other men. Thus, women may overlook men’s distress from sexual deception in the same way that men (and the law generally) may overlook the degree of emotional harm women experience as a result of sexual coercion and deceit. The gender-neutral battery paradigm proposed herein would allow a plaintiff to plead and prove the full gamut of tort damages – general and special compensatory damages, and punitive damages where appropriate – based on his or her individual experience. Perhaps most importantly, the gender-neutral paradigm recognizes that some men experience emotional pain similar to female victims of sexual deceit, and some women suffer economic losses as a result of sexual deceit similar to men’s stereotypical experiences. If gender-neutrality is not possible, a flexible gender-neutral paradigm for sexual misappropriation may nonetheless be the best tort remedy for this form of harmful sexual behavior so that the jury – the barometer of minimal civil expectations and requirements – can make injury assessments and damages awards in individual cases.
So there are some places in Sacks’ article for us to begin.
Here are some thoughts that come to my mind so far as situations where a woman possibly might not have consented to sex had she known the truth, and which I believe would “vitiate” any consent she had given ahead of time:
The person had a STD;
The person was married or had one or more sexual partners;
The person had a history of criminal violence against animals, women or others;
The person had a history of molestation of a child or of incest;
The person had a history of rape or sexual assault;
The person had a history of sexual harassment;
The person was a drug abuser;
The person was a felon;
In the case of a lesbian, the other person was not born female;
In the case of a heterosexual woman, the other person was not born male;
The person had living, underage children;
The person had a terminal illness;
The person was not who he held himself out to be in ways which were significant, i.e., he said he was an unmarried entrepreneur named Bill Gates when in fact he was an unemployed, married, used car salesman named Mergatroid Schmidlap. This kind of thing would be particularly useful in instances where men meet women on the internet and go from woman to woman across the country “marrying” each one using different names, ripping them off, sometimes killing them, and then moving on to the next victim. These guys can always claim the woman “consented”.
The person uses prostituted women;
The person goes to strip bars;
The person uses pornography;
The person is into bdsm or has other sexual fetishes.
So there is a partial list of lies I think would “vitiate” consent. Note that they do not include the guy’s profession, job, or income level or his having said, “I will marry you” or his having proclaimed a woman to have been the most beautiful woman in the world. The idea that women are all about this kind of lie is a male fiction. (It’s also about males competing with males; i.e., male pissing matches– this kind of stuff really has little to do with how women decide who they will have relationships or sex with).
To the extent your reality does not fit the law’s picture, your rape is not illegal. The implications of this for everyday sex life are that any man who knows a woman of the same race can probably get away with raping her. The better he knows her, the more likely he is to get away with it. Married women in states that do not have a law against marital rape are the ultimate example…
What does all this mean for having no mean no? When no can legally mean yes, what does yes mean in everyday life? When rape passes legally as intercourse, what is sexual intimacy? The law of rape deeply affects sexual intimacy by making forced sex legally sex, not rape, every night. Every day, because women know this, they do not report rapes nine times out of ten. When a woman does report, the media have the legal right to print her name and picture, making her into everyday pornography…Many women, no matter how violated they were, do not call what happened to them rape if they do not think a court would agree with them. In this ultimate triumph of law over life, law tells women what happened to them and many of us believe it. When asked, “Have you ever been raped?” many women answer, “I don’t know.
…The realm in which women’s everyday life is lived, the setting for many of these daily atrocities, is termed “the private.” Law defines the private as where law is not, that into which law does not intrude, where no harm is done other than by law’s presence. In everyday life, the privacy is his….Wives are raped in private. Women’s labor is exploited in private. Equality is not guaranteed in private. Prostitution, when acts of sex occur out of public view, is often termed private….
Women in everyday life have no privacy in private. In private, women are objects of male subjectivity and male power. The private is that place where men can do whatever they want because women reside there. The consent that supposedly demarcates this private surrounds women and follows us wherever we go. Men seem to reside in public where laws against harm exist — real harm, harm to men and whoever has the privilege to be hurt like men — and follow them wherever they go. Having arranged the law against rape and battering and sexual abuse of children so virtually nothing is done about them, and having supported male power in the home as a virtual absolute, the law then proclaims its profoundest self-restraint, its guarantee of liberty where it matters most, in “the right to be left alone.” This home is the place Andrea Dworkin has described from battered women’s perspective as “that open grave where so many women lie waiting to die.” As a legal doctrine, privacy has become the affirmative triumph of the state’s abdication of women. Sanctified by the absolution of law, the private is the everyday domain of women in captivity, abandoned to their isolation and told it is what freedom really means.–Catharine A. MacKinnon, “Law in the Everyday Life of Women,” in Women’s Lives, Men’s Laws, Belknap Press of Harvard University Press, Cambridge, Massachusetts, 2005
In the same chapter from which I excerpted the above quote, MacKinnon makes the point that women in the United States have so far made at least one law: the law against sexual harassment. Before sexual harassment law, sexual harassment was simply everyday life for women, something men did to women with impunity. When women’s experiences of being sexually harassed were made the basis for a law against that harassment, life began to change for women. Men didn’t stop sexually harassing us, but there was a name for what they did now, and, as MacKinnon says, the experience had an “analysis that placed it within the collective reality of gender, a forum for controntation with some dignity and the possibility of relief. … Changing what could be done by law changed the way it felt to live through [sexual harassment] in life, and the status of women took a step from victim to citizen.”
Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person’s consent by the use of fraud, concealment, or artifice and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, `fraud’ or `artifice’ shall not be construed to mean a promise of future consideration.
Intentional sex tort laws would require fair disclosure for giving of consent to be recognized as valid, with issues of intent to offend and offensive contact factored in, as with battery. As Sacks says, “In a world filled with dangerous sexual diseases, it is particularly important to protect women’s rights to protect their own bodies, not just against physical violence, but against fraudulent inducement of sexual decisions and all of the dangerous consequences that can result from a lack of truly informed consent to sexual relations.”
Laws that recognize and punish theft of sexual autonomy (by, for example, lying about important things, like who someone is or whether he has STD’s, in order to get women to agree to have sex with him), name a theft most women have experienced as rape and, as with sexual harassment law, offer an analysis and recognition of our lived reality which could powerfully change it.
How likely laws are to bring about real change for women can often be gauged by men’s response to their proposal. Following are a few choice responses from male attorneys who blogged in response to Sacks’s post. They give us some idea how large is the boulder we might have to move up the mountain and how steep the mountain might be.
Geeklawyer had thought that feminism was a joke that after 25 years was confined to history and the odd nostalgic memory of decaying overweight women with sagging breasts and moustaches…
Apparently a bunch of strapon wearing bull-dyke feminist law professors are asserting that lying to a woman in order to give her the pleasure of one’s Pork Sword is rape. American professors are a breed with less intellectual credentials than one would accept in the UK. Across the pond ‘Professor’ is merely a job title rather than, as it is here, a recognition of intellectual prowess.
I find Professor Sack’s bigoted description of sexual dynamics disgusting. Why is it that men are depicted as sexual predators doing anything possible to “invade” a women’s bodies? And women are these bastions of sexual virtue knitting in the castle tower only trying to fend off attacks from the raving hordes below? Does she not realize that all human beings are sexual animals and will occassionally lie to get it?
Expanding tort law to cover dishonest sexual encounters is a horrifying proposition. We have to be left to be human — even if that means that some immoral, abhorrent, and even disgusting behavior will leak through the sieve of our legal system… For as long as we live and love, someone will lie about their feelings to someone else… I’mnot simply arguing that boys will be boys. I am arguing that this is the yin to the yang of love, passion and ecstasy.
Every time you meet someone or f*** someone you are taking a risk. That’s part of the thrill!
Yeah, coming up positive for HPV is just so damned hawt and sexxxeeeeee.
Well, it should be interesting. Thanks to Ann Bartow for the distant early warning and especially for introducing me to Deana Pollard Sacks. I’m looking forward to reading everything she writes and passing it along.
UPDATE: Terapon Adhahn, left, was sentenced Friday to life in prison without possibility of parole. He was convicted of the following crimes:
• One count each of aggravated first-degree murder, first-degree kidnapping and first-degree rape in the July 2007 death of 12-year-old Zina Linnik.
• Three counts of first-degree rape and one count of first-degree kidnapping in the rape of an 11-year-old Tacoma girl abducted on her way to school in May 2000.
• One count of first-degree rape, three counts of second-degree rape and three counts of third-degree rape of a child for repeated sexual assaults of a teenage girl who lived with him from 2003 to 2005.
• One count of failing to register as a sex offender, for not abiding by the conditions of his sentence for a 1990 incest conviction.
Heart
__________________________________
The man in chains in the photo, Terapon Adhahn, 42, was arrested a few days ago, after he told police where he left the body of Zina Linnek, 12, one of eight children whose family lives in Tacoma, Washington, where I was born and grew up, within a few miles of where three of my adult children now make their homes. Adhahn left Zina’s body at a rest stop in an area of personal importance to me, at the entrance to Silver Lake on the Mountain Highway not far from Tacoma, where my grandparents built a cabin when I was a tiny girl, a cabin my parents still own which lies just below the home in which they now reside, and where our family regularly gathers. Whenever we drove up to “the lake” when I was a girl, my dad would joke in a kindhearted way about people picnicking in the rest area, saying they likely believed they were out “in the wilderness.” To my dad, only remote, nearly inaccessible, “rugged” areas qualified as “wilderness.” We’d smile at my dad, the harried attorney become quasi-swagger-y like a mountain man, and we’d drive around the bend just moments away from my grandparents’ rustic cabin, complete with outhouse in those days, full of family memories and memorabilia, as it still is.
The days of reminiscing as we drive past that “rest area” are history now; that place will forever be shadowed and haunted by the brutal murder of a little girl, whose body was discarded as so much rubbish there.
by Cheryl Lindsey Seelhoff, Women’s Space, May 4, 2008
Introduction
Last January I blogged about Jamie Leigh Jones, a Halliburton/KBR employee in Iraq who was brutally gang-raped by co-workers after having had her drink surreptitiously drugged. She was so badly injured in the attack, she required surgery. She was seen by a doctor and a rape kit documented the rapes (though part of the rape kit mysteriously disappeared while in the “care” of Halliburton employees). After the rapes, Jones was imprisoned in a container for several days, deprived of basic necessities of life and was guarded by Halliburton/KBR employees to prevent her escape. She managed to gain access to a cell phone, called her father in Texas, and her father contacted a Republican legislator, Ted Poe, who secured Jones’ release and return to the U.S. Jones was in Iraq for only four days. Upon her return she retained attorneys, but Halliburton/KBR maintains, and Courts have so far agreed, that Jones must submit her claims to binding arbitration rather than filing a civil lawsuit because she signed a “binding arbitration clause” hidden in an 18-page employment contract she signed before she left for Iraq. Unlike civil and criminal court proceedings, arbitrations are private and confidential, not disclosed to the public.
Jones testified about the rapes before a Congressional investigatory committee (Youtube video of her testimony can be viewed at the link above to my January post.) The Department of Justice was subpoenaed to testify before the committee as well but declined to appear. As things stand, women employees of defense contractors in foreign countries may be, and are being, sexually harassed, sexually assaulted, battered and raped with impunity and their only recourse is private arbitration with their employers once they manage to escape what often amounts to captivity and are back in the U.S.
After I blogged about Jamie Leigh Jones, I began receiving e-mails and comments from relatives of another woman, Tracy Barker, who had also been employed by Halliburton/KBR, and who had also been raped in Iraq. Barker’s story seemed complicated and the e-mails and comments I received were sometimes hard to follow. I wasn’t sure what to make of what I was reading and knew I needed to do some investigation. I spent time today, finally — having yesterday received another comment to my blog on behalf of Tracy Barker – investigating the claims of those who have loved and supported her. I pulled up U.S. District Court dockets from the Southern District of Texas and the Eastern District of Virginia, read all of the relevant and substantive pleadings and viewed all of the exhibits attached to the pleadings. I read the comparatively few articles I could find online about Barker, a New York Times article, (also posted on Truthout), an article on People’s Speak Radio, a post written by another American woman blogger raped in Iraq, and the few comments to the posts, which I believe included comments by counsel retained by Halliburton. Barker’s story resonated and rang true to me, and I am convinced that she and her family members are reporting events which deserve as much public attention as can be gathered on her behalf. Barker, her husband and her family strike me as decent, honest and hardworking citizens who have repeatedly been shocked and stunned, as they should be, by the treatment Barker has received from her employer, government officials, attorneys, arbitrators, courts, corporate executives, HR personnel and news media they believed they could trust.
For the most part Barker has been silenced, prevented from telling her story. She was summoned to the same Congressional hearing to which Jamie Leigh Jones was summoned but was not permitted to testify. She had only two hours’ notice that she needed to board a flight to attend the hearing. She had just given birth to twins who were born prematurely and were in intensive care. Nevertheless, she traveled to Washington D.C. at her own expense of $1,300. In the Youtube video below, a somber Barker is visible seated behind the podium where Jamie Leigh Jones is speaking. Having traveled all that way immediately post-partum, she never got the chance to speak for herself before the assembled Congressional committee.
Tracy Barker is the daughter of a Vietnam veteran and the wife of a career Army soldier, Galen Barker, who has served on the Golden Knights Parachute Team for 24 years. She is the mother of five children.
Sexually Harassed and Threatened by Supervisors in Baghdad
Barker began working for Halliburton in 2004 in the “Green Zone” in Baghdad.
Shortly after her arrival in Baghdad, her supervisors, Crystal Daniel and Barron Marcee, began to sexually harass and threaten her. She observed that they were also threatening and sexually harassing Iraqi women who would at times cry and approach her for help. At one point one of these supervisors choked an Iraqi woman, “Sunni”, in a conference room as though attempting to kill her. Shocked and outraged, Barker reported these events through what she believed was a confidential program allowing employees to make complaints through Halliburton employees in Houston. But Barker’s complaints were not kept confidential; instead they were forwarded on to her supervisors, who then retaliated by stepping up the threats and sexual harassment. When she resisted, just as with Jones, Barker was imprisoned in a container where supervisors attempted to force her to sign a false statement that she was guilty of bad conduct and where she was denied any contact with the outside world, including her husband. She was not allowed to even use the bathroom except under the surveillance of Halliburton/KBR employees.
Pornography Papering Basra Office Walls
Barker was then transferred to Basra. When she arrived, a number of men were present and waiting for her. She was told by a manager the men were there to see how “good looking” she was. She shared a working space with several men. The walls and halls throughout were completely covered with pornography, including photographs of male coworkers visiting brothels in Thailand, as they frequently did, and photographs of animals copulating. Copies of these images on the wall above her desk are attached as exhibits to documents in the lawsuit she filed in U.S. District Court for the Southern District of Texas, and I saw them. One of them depicted a supervisor in bed with the caption, “We try to get you into bed.”
“What Happens In Basra, Stays in Basra”
There was no HR department in Basra, so Barker complained about her supervisor, Sherman Richardson, to someone she understood to be an HR employee working for the State Department, Charles Hermanen. Hermanen said the woman Barker was replacing had complained of the same problems and had left because of them, and that other employees had complained about Richardson as well, but that “Sherman will be Sherman.” This was Barker’s introduction to the oppressions and abuses she would experience in Basra, where the motto, it was said, was “What happens in Basra, stays in Basra.”
At one point private meetings were held by the State Department in conjunction with Halliburton where women– soldiers, contractors and State Department employees — were told they were not safe in Basra because of the men’s behavior. They were warned NEVER to go anywhere alone. They were told of break-ins into women’s quarters, theft of undergarments, and peeping Toms. They were also told if they reported these meetings, they would lose their jobs.
Sexual Harassment by Basra Camp Manager Craig Grabein
As time passed, Basra Camp Manager Craig Grabein, a married man in his 40s from Texas, began sexually harassing Barker, knocking on her door at all hours of the day and night, telling her he would protect her from all of the other predators there if she would have sex with him.
Scared, Barker determined to get to Kuwait to report these events to the Halliburton/KBR HR office there. Every time she was scheduled to go, however, her name would be removed from the manifest at the last moment, so she couldn’t leave. When she was finally able to leave, she was followed, threatened, then left alone in a staging area in Iraq in the middle of a war zone. She hitched a ride to Kuwait on a food truck driven by a British soldier and rode 19 hours through a war zone, aghast as she passed starving children and insurgents all along the way. She arrived in Kuwait only to be told by Halliburton employees to return to Basra and to say nothing.
She returned to Basra and found that all of her belongings had been removed from her room.
She began talking daily by phone with a woman employee of Halliburton/KBR, but she was not allowed to travel.
Attempted Rape by U.S. Embassy Official Ali Mokhtare
Barker’s job in Basra was to see to it that equipment was functioning properly at the Basra camp or to see to it that it was replaced. One evening Ali Mokhtare (below), Deputy Regional Coordinator for the U.S. Regional Embassy Office in Basra, Iraq, the second highest ranking representative of the United States Government there, told Barker he was having trouble with his air conditioner.
Barker went to his quarters to investigate, but when she arrived, Mokhtare didn’t mention his air conditioner. Instead, he asked whether she would like to join him in having a Jack Daniels and Coke. Barker tasted the drink and found it very strong. Barker spoke with Mokhtare about other job opportunities for herself and her husband. But then, Mokhtare grabbed Barker’s blouse, told her he had been trying to see what was under her blouse all day, and attempted to kiss her. She fought him, and he wouldn’t allow her to leave his room. Instead he told her stories about “chop chop square” in Saudi Arabia where people lost their limbs and tongues and told her about a Filipino woman he heard of who had been raped repeatedly by a Saudi prince. The woman had killed herself when no one believed her story.
Barker was able finally to flee in terror with Mokhtare in pursuit, yelling at her in Farsi. A woman who saw what was happening and who spoke Farsi told Barker Mokhtare was threatening her.
Paraded Before Male Employees of Halliburton
Barker reported the attempted rape to Halliburton/KBR and State Department security and was again locked up for three days in a container and allowed no contact with anyone. When she snuck out and used a pay phone to call her husband, who was trying to contact someone he knew from Black Water who might be able to rescue her, she was caught and forced to stay in the container for another day. She spent her days in the locked container crying, pleading for help, and hiding under a bed holding a knife.
After she had been in the container three days camp supervisors forced her to put on the clothes she had been wearing when Mokhtare attacked her — a shirt, vest and trousers — and to parade through a common area filled with men so they could determine whether the men found her clothing sexually provocative.
Barker was consistently refused medical care and was not allowed to leave Basra.
Meanwhile, Mokhtare had been questioned by security personnel about the incident. This is what he said about the incident, taken directly from a Diplomatic Security Service Memorandum dated June 25, 2005, and filed as an exhibit in Barker’s Southern District of Texas lawsuit:
Subject [Mokhtare] stated that he and Barker had some initial job related discussions and the remainder of their conversation was professional. Subject said that Barker wore a buttoned vest with a white undershirt underneath. He claimed the vest and the shirt had plunging necklines. Subject further stated that Barker continually pulled at her vest and shirt as if to expose her breasts. Subject admitted that he pulled her vest and shirt opened (sic) and said to Barquer (sic) ”What do you have behind there?” [Investigator] asked subject if he thought Barker was interested in an advance or some type of romantic or sexual contact. Subject repolied in the negative. Upon further questioning… Subject said, “I admit it was an inappropriate move.” He also said, “I made a mistake and it was stupid.”
… Subject claimed he conveyed several stories about briefings he received of Saudi misconduct and observations of ”chop/chop square” where punishments such as cutting out tongues and chopping off limbs took place. Subject further stated that he told Barker a story abot a Saudi Prince who allegedly raped a Philipino woman who later committed suicide because no one believed her story….
[Investigator] asked what happened upon Barker’s departure. Subject said that as Barker got up to leave he stood and they hugged at which point he kissed her cheek. Subject further stated that Barker turned her hed towards his mouth giving him the impression that she wanted to be kissed. Subject admitted that Barker put her hand over her mouth and said no. Subject said he released the hug at that point and offered to walk her back to her accommodation trailer.
In other words, Mokhtare admitted he had attacked Barker and blamed her for his attacks. It is interesting– when Barker recounted the events of that night, she remembered touching the pendant on a necklace given to her by her husband that she wore all of the time, the kind of thing we do as women when we are scared and are attempting to comfort ourselves.
Mokhtare is still employed today by the State Department.
Raped by Camp Manager Craig Grabein
Hearing that a doctor had been stranded at the base, Barker contacted him, told him what happened, and ignoring the orders of her supervisors that she stay in Basra, the doctor placed her on a manifest to leave the next day. She was given sleeping pills. That night camp manager, Craig Grabein, the man who had been continually sexually harassing her, demanding sex from her in exchange for his “protection,” entered her room and raped her. She woke up to find him on top of her. She immediately reported the rape to the doctor and to authorities*. She left Basra the next day.
Silenced at Home
When Barker returned to the United States, she was told by a State Department investigator, Lynn Falango, that Mokhtare would be stripped of his security clearance and prosecuted. He never was. Later Falango called Barker to tell her what had happened to Barker in Iraq was being covered up and that Barker should hire an attorney. Falango said she had been told not to contact Barker again and that the case had been taken from her when she tried to get Mokhtare prosecuted.
A few months later Barker was surprised when she began receiving calls and correspondence from other women Halliburton/KBR employees who had also been raped in Iraq. These women said Falango had given them Barker’s name and number as someone who had gone through the same thing and might be able to help, apparently since no one else could! The inference is that one of the women who contacted Barker was Jamie Leigh Jones, although Jones’ name is not specifically mentioned in court documents as one of these women.
State Department Hush Money
In November of 2005, Barker received a phone call from Attorney Advisor, Henry Norcom, who worked with the Civil Rights Office of the State Department. He offered her $3,500 to drop the allegations against Mr. Mokhtare. Barker refused and was then told her case was closed.
EEOC Finds in Favor of Barker
Barker had filed charges of discrimination, sexual harassment and retaliation with the Houston Office of the U.S. Equal Employment Opportunity Commission once she got back to the U.S. I read the EEOC reports and they found in favor of Barker, and stated that Halliburton retaliated against Barker following her good faith report of sexual harassment, and that instead of addressing Barker’s complaint, they tried to orchestrate her termination. **
Civil Suits Dismissed
Barker filed a civil suit against Halliburton/KBR, Mokhtare, and others in the U.S. District Court for both the Eastern and Southern Districts of Texas. Her case was first moved from the Eastern to the Southern District, then was ultimately dismissed for lack of jurisdiction because of the “mandatory arbitration” clause Barker had signed with Halliburton/KBR. In issuing his order on August 16, 2007, Judge Gray H. Miller wrote:
All of these arguments address the wisdom of arbitration as a whole and more specifically arbitration of sexual harassment claims. Whether it is wise to send this type of claim to arbitration is not a question for this court to decide. District courts are bound to follow the precedents set by higher courts. And, that precedent is quite clear: Barker’s claims are included within the ambit of claims proper for arbitration. Sadly, sexual harassment, up to and including sexual assault, is a reality in today’s workplace. …Although Congress has expressly exempted certain types of employment claims from the reach of the Federal Arbitration Act, it has not addressed sexual harassment claims. …Therefore, unless and until Congress tells the courts that binding contracts to arbitrate do not include these types of claims, Barker’s policy arguments cannot prevail. For all of the foregoing reasons, Barker’s claims must be arbitrated pursuant to the arbitration provision of her employment contract. (Bolds mine).
I noted that within the past month, a motion for consideration (basically an appeal of the judge’s decision) brought by Barker’s attorneys was denied.
Judge Miller severed the complaints against Mokhtare and transferred them to the Eastern District of Virginia. Mokhtare attempted there to be granted “certification,” which would exempt him from prosecution based on the fact that he was acting as an employee of the State Department and hence was immune from prosecution. A couple of weeks ago, the Virginia judge denied Mokhtare this certification. The case continues.
Silenced
In the meantime, Tracy Baker has been all but silenced. She was not allowed to tell her story to the Congressional investigatory committee. She was not allowed to tell the most important parts of her story to ABC’s 20/20.*** She has been told by a Texas judge that her only option is mandatory, private arbitration with Halliburton/KBR, the company that allowed and ignored her rape, battering, imprisonment and abuse for over a year. Hillary Clinton refused to help her because, said Clinton, Barker wasn’t a resident of the state of New York. She is being told that having been sexually assaulted by a top-ranking State Department official, raped by a Halliburton camp manager, and continually sexually harassed, imprisoned and tormented throughout her employment in Iraq are employment “grievances” to be resolved by arbitration. She suffers post-traumatic stress disorder and cannot work.
Conclusion
I don’t know why Jamie Leigh Jones, who spent only four days in Iraq, has received the amount of publicity and support she’s received, compared with Barker who spent over a year there in both Baghdad and Basra. I can’t help but wonder whether it is because, as Barker was told, “Gang rape sells, not sexual assault or ‘just’ rape.” I wonder whether it might be, in part, because Barker is French Basque/Spanish and is hence a woman of color, therefore not the kind of complainant the blonde American Jamie Leigh Jones is, or because Jones’s father was the kind of man who could gain the immediate attention of a Republican legislator with a quick phone call, securing his daughter’s release within three days of the attacks on her. I wonder if it might be, in part, because Barker is a mother of five, instead of a young woman in her 20s with no children. I wonder whether it was because Barker saw too much, knew too much, including about the attacks of Halliburton employees on Iraqi women as well as Halliburton employees. I wonder if, despite Mokhtare’s own admissions, Barker going to his room – even though as part of her job, it was up to her to address the problem he said he had with his air conditioner — made her claims less interesting or credible somehow. I suspect, in part, it might be because at times, Barker has seemed to castigate and blame herself, to express guilt and remorse for being unable in her drugged exhaustion to fight Craig Grabein off when he raped her, in the way, women often blame ourselves, as though it is up to us to keep men from raping us, instead of up to men to stop raping women.
Whatever the reason, the silencing of Tracy Barker is an outrage. Her story must be heard, and she must receive justice. To that end, I have written this post. Please, spread the word.
* When the doctor, Dr. Pakkal, who rescued Barker, was later questioned, he said he had seen so many women who had been raped in Basra, he couldn’t remember Barker specifically.
** The EEOC found that Barker’s supervisors in Baghdad were abusive to both men and women in their charge and so they did not find that the supervisors’ abuse was on the basis of Barker’s sex.
*** Both the State Department and Halliburton/KBR declined to discuss Barker’s case with 20/20.
Sources for this article:
Documents, pleadings and original source documents filed as exhibits and attachments, in Tracy K. and Glen D. Barker v. Halliburton Company d/b/a KBR (Kellogg, Brown & Root) Services Company, Inc.; KBR Technical Services, Inc.; Ali Mokhtare; Services Employees International, Inc.; and the United States of America, U.S. District Court for the Eastern District of Texas (Beaumont Division), Case No. 4:07-cv-02677;
Documents filed in Tracy K. and Glen D. Barker v. Halliburton, et al., U.S. District Court for the Eastern District of Virginia, Alexandria, Case No. 1:2007cv01231
"Oh, Misery, I have drunk thy cup of sorrow to its dregs, but I am still a rebel." — Lucy Parsons
"We, the women of this country, have no ballot even if we wished to use it, and the only way that we can be represented is to take a man to represent us. You men have made such a mess of it in representing us that we have not much confidence in asking you . . .
"We [women] are the slaves of slaves. We are exploited more ruthlessly than men. Whenever wages are to be reduced the capitalist class use women to reduce them, and if there is anything that you men should do in the future it is to organize the women. . . .
"We [say] that the land shall belong to the landless, the tools to the toiler, and the products to the producers. . . . I believe that if every man and every woman who works, or who toils in the mines, mills, the workshops, the fields, the factories and the farms of our broad America should decide in their minds that they shall have that which of right belongs to them, and that no idler shall live upon their toil . . . then there is no army that is large enough to overcome you, for you yourselves constitute the army . . . .
"My conception of the strike of the future is not to strike and go out and starve, but to strike and remain in and take possession of the necessary property of production. . . .
". . . . Let us sink such differences as nationality, religion, politics…There is no power on earth that can stop men and women who are determined to be free at all hazards. There is no power on earth so great as the power of intellect. It moves the world and it moves the earth. . . .
"A woman of color and a working-class revolutionary, Parsons spent her life struggling for the rights of the poor, unemployed, homeless, women, children, and minority groups, and for a future society based on free association of labor organizations.
"Born in Texas, possibly a slave, she met Albert Richard Parsons, a militant advocate of the rights of freed people, around 1870, and they moved to Chicago in 1873. In 1877 Albert was blacklisted from the printing trade, and Lucy assumed household financial responsibility by opening a dress shop. She began writing about tramps, disabled veterans of the Civil War, and working women for the Socialist in 1878. She soon gave birth to two children.
"…With other anarchists, she began organizing for the May 1, 1886, general strike for the eight-hour day, concentrating her efforts on sewing women. On May 1, she and Albert led 80,000 workers and supporters up Michigan Avenue. Three days later a labor rally at the Haymarket was the occasion of a fatal bombing incident. Police charged that radical activists were responsible.
"As her comrades were rounded up after the May 4 bombing, Lucy began organizing the Haymarket defense. After eight defendants, including Albert, were found guilty of murder, she traveled to many states, pleading her comrades' innocence to the charges, but defending their revolutionary goals. By February 1887, she had given forty-three speeches in seventeen states. When Albert was executed in November of that year, Lucy became a widow with a cause to carry on."
April 29, 2008 – 03:10 PM
A new study suggests that women treated with Fosomax to combat the symptoms of osteoporosis are twice as likely to develop a common form of irregular heartbeat known as atrial fibrillation than those who have never taken the drug. Atrial fibrillation can lead to heart palpitations, fainting, fatigue or congestive heart failure. Atrial fibrillation is relatively common ailment affecting about one percent of Americans and becomes increasingly common with age, with just under ten percent of those over the age of 80 affected by the ailment. A new study headed by Dr. Susan Heckbert suggests that Fosomax may drastically increase the chances of developing atrial fibrillation.
For her study, Dr. Heckbert and her colleagues from Group Health analyzed 719 women with diagnosed atrial fibrillation that began taking the drug between 2001 and 2004, and 966 women who were the same age but did not have the condition. According to the findings, there was an 86 percent higher risk of newly found atrial fibrillation in those who had used Fosamax compared with those who had never used it.
Way back on November 12, 2001 — over six years ago – Susun Weed, a woman healer, responding to a question from a woman whose doctor had prescribed Fosomax, wrote:
Sent: Monday, November 12, 2001
Subject: Increase your bone mass naturally – not with Fosomax
The best things I know of for increasing bone mass are (1) yogurt, at least half a cup a day; (2) nourishing herbal infusions of nettle, oatstraw, comfrey leaf, or red clover, at least two cups a day. (I rotate the herbs so I have each one about two times a week.) (3) Elimination of coffee, white sugar, and white flour from your diet (little bits won’t hurt, but not daily use). (4) Increase in the amount of fat in the diet (needed for the processing of minerals). I have seen women increase their bone mass by 6 points in 6 months by using these three tips.
But I am not so sure that you really have a problem. Bone mass does not correlate with bone breakage!! Bone flexibility is what we want because that is what prevents breaks. Fosomax makes the bones more massive, but more brittle. Yoga, tai chi, and other stretching forms of exercise help women be more flexible. Are you doing this weekly?
Massive bones are not necessarily an indicator of health. Women with high bone mass are four times more likely to be diagnosed with breast cancer! Women who take calcium supplements are twice as likely to break a bone as women who don’t. Perhaps you are listening to your doctor and doing what your doctor wants but maybe this is not so good for you.
By the lights of the gods of patriarchal medicine, of course, Weed is the heretic and quack, not them, not the drug companies, all of which dispense these pills full of disease-producing toxins like they are candy.
One in 3 women and girls may be beaten, coerced into sex or otherwise abused in their lifetime. Shocking, isn’t it?
But what’s equally upsetting is that most women don’t denounce their abusers because they are afraid of further violence and of being stigmatized. Help us speak out for these women. Add your name to this rapidly growing book of names so it becomes a powerful lever to advocate for change. Be counted and let survivors of violence know that they can count on you.
