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"But the problem is I cannot trust him because he was working at the black site with the CIA and we know him from there." Such were the words of Ramzi bin Al-Shibh, 42-year old accused 9/11 co-conspirator, who, one quiet Monday morning, addressed Judge James L. Pohl of the 9/11 military commission at Guantanamo Bay and uncovered the identity and background of the new interpreter who had recently been assigned to work with his defense team. Revealing what some defense counsel referred to as a "silent, yet deadly grenade." The gravity of bin Al-Shibh's statement left a heavy air in the courtroom, off-roading the trajectory of the process once again after months of hiatus.
Initially prepared to argue procedural issues of severance, defense teams quickly scrambled to request that proceedings be halted, utterly shocked at yet another surreal reminder of the men they were representing, the venue in which they were appearing and the process in which they were partaking. By week's end, defense, prosecution, judge and NGO observers all packed up, uncertain of how the deteriorating status of due process would be resolved and unclear as to when they would return to the island next.
At best, the CIA interpreter is an example of governmental incompetence in adjudicating a fair trial. At worst, it is another instance of an outside agency attempting to infiltrate the defense teams. Regardless, the 9/11 trial has been plagued by numerous examples of due process violations that allude to an increasingly-undeniable realization that the military commission may not be the most appropriate venue for a fair trial.
In 2013, defense attorneys were shocked to find out that the smoke detectors in their attorney-client meeting rooms were actually CIA listening devices connected to a nearby room where an agent sat listening to privileged conversations. Air Force Capt. Michael Schwartz described feeling nauseated when he stood up on his chair, read the company name of the smoke detector and ran a Google search only to reveal the disguised listening device manufacturer. Adding an even more surreal element to the proceedings, it was also later revealed that the CIA maintained outside control over the top-secret courtroom's public audio feed and that defense desk microphones continued to pick up confidential conversations when they appeared to be turned off. As recently as April 2014, a member of the Al-Shibh defense team was approached at his Virginia home and convinced to sign a nondisclosure agreement with the FBI, raising potential concerns regarding a conflict of interest. While the extent and nature of the FBI investigation has yet to be revealed, it is clear that an outside agency successfully gathered information from within the defense team, calling into question the ability of the attorneys' to continue their representation and further highlighting the slew of problems associated with a military commission.
The glaring question of motive behind these actions is purely a matter of speculation. Agency officials have used national security concerns to justify the monitoring of the defense teams charged with representing the most notorious terrorist suspects in US judicial history. What is not speculation however is that the military commission was first established to conceal the extent of US torture programs and other classified information.
With the much-anticipated release of the Senate's Committee Study of the Central Intelligence Agency's Detention and Interrogation Program [PDF], more commonly referred to as the "Torture Report," the case for a military commission becomes less compelling. Revealing thousands of pages of detail on the "enhanced interrogation techniques" employed by the US government on detainees between 2001 and 2006, the report sheds light on the confinement conditions and treatment that may have produced some of the evidence that is currently being amassed against the "9/11 five." More importantly, the report changes the dynamics inside the Guantanamo courtroom. For years, the word "torture" could never have been spoken inside the courtroom; when the court finally reconvened during the week of February 9, 2015 for the first time since the report's release, lawyers could finally refer to the torture their clients had been subjected to. Defense attorney Walter Ruiz, representing defendant Mustafa al-Hawsawi, explained why his client had spent the last few years with an extra pillow on his chair. He spoke of the "sodomy" and rectal examinations that al-Hawsawi had undergone and the fact that his client continues to undergo chronic rectal bleeding even today due to the complicity of the very doctors who were designated to treat him. "I couldn't have told you that before the Senate intelligence report was released," Ruiz says.
Now thanks to the report, defense counsel will be able to cite to a number of conditions and circumstances that are documented by the US government without fear of violating classification guidelines; such conditions will very likely be instrumental in making arguments for what the law refers to as "mitigating circumstances," paving the way for lesser sentences. The report also counsels towards increasing observability by the public and unlocking key aspects of discovery that will become instrumental as the case finally proceeds on the merits.
The Military Commission Act of 2009 [PDF] establishes the 9/11 military commission in its current incarnation. Those subjected to a military commission "do not benefit from the numerous protections granted in federal court." Of particular note, military commissions allow for the use of hearsay and other evidence not accepted in federal court. There is no right to a speedy trial; a panel of military personnel, not a civilian jury, determines guilt or innocence. Perhaps of greatest concern is the fact that Executive branch agencies oversee all sides of the proceeding. Defense counsel are appointed military defense attorneys, the prosecution is lead and comprised of high-ranking military officers.
With the world's eye on Guantanamo Bay and international condemnation of the US for torturing its detainees, the need for fairness and legitimacy in the trial of the "9/11 five" has never been greater. If the US is to retain respect for its underlying values, it must reexamine its current attempts to bring justice to those allegedly responsible for the 9/11 attacks.
At one point in the short history of the 9/11 military commission, there may have been a slight tilt in favor of trying the "9/11 five" in a military court instead of a federal one, a notion once furthered by executive agencies seeking to maintain control over the release of information. Today, with a Torture Report that has increasingly overcome classification limitations and an increasingly worrisome laundry list of incidents chipping away at notions of due process, this is clearly no longer the case.
The circumstances at hand mandate that the Executive and Congress take a moment to reflect on the successes and failures of the military commission thus far and that they ask the difficult question of whether hosting a military trial is truly as beneficial as initially envisioned. While the "9/11 five" can no longer be physically brought into the US in light of congressional directives, it remains an important exercise to brainstorm how best to bring an invigorated sense of due process to the current proceedings, whether that be a change in venue, returning the trial to federal court, or amending the code of military justice.
What makes the US unique in its commitment to justice is that it is willing to hold itself accountable. This spirit remains singular in the international community today and is manifested in the willingness of the government to release information that may incriminate it. This spirit is also undeniably present in the American willingness to try the alleged co-conspirators in the very events that changed the trajectory of the nation, upset its citizenry's long enjoyed sense of safety and claimed the lives of over 2,800 innocent people. There is no better means by which to continue this unique American spirit than to afford even these men, the notions of American justice, the standards of American due process and the fairness of an American courtroom. The age-old federal court system, an institution that has weathered both classified materials and political questions, is more than capable of handling the case of the "9/11-five."
The top-secret military commission courtroom, situated on the banks of Guantanamo Bay, is housed in a part of the base called Camp Justice. Surrounded by sniper netting and razor wire, the irony of the camp's name is lost on very few. From the gallery of the Guantanamo war court, one observes six tables to the left, one for each of the original "9/11 six", now five. This court was built for this trial, the law was tailored to convict these men, and the government's action thus far have focused on the concealment of torture, rather than the atrocities on trial in this case. American ideals are superior to those of terrorists because they embody justice, rights and fairness. Justice for 9/11 should not be a justice tailored to the circumstances; it should be the same justice that Americans seek in the courtroom every single day.
B. Shaw Drake and Mai El-Sadany are both third year JD students at the Georgetown University Law Center where their studies focus on civil and human rights law. They were selected on behalf of their University to serve as NGO observers at the 9/11 Commission hearings in December 2013 and February 2014 respectively.
Suggested citation: B. Shaw Drake and Mai El-Sadany, Obama's Gitmo Regrets Abound: The 9/11 Military Commission-Two Observers' Perspectives, JURIST - Dateline, Mar. 26, 2015, http://jurist.org/student/2015/03/drake-El-Sadany-military-commission.php
Under the JPOA, Iran had committed to halting uranium enrichment to 20 percent (the key source of worry for the E3+3, in as much as 20 percent enriched uranium can be easily converted into the levels of enrichment required for weapons-grade uranium) and restricting enrichment to 5 percent (for use as fuel). Iran also reaffirmed (not for the first time) that it would not seek or develop nuclear weapons. Iran also consented to the IAEA enhanced monitoring pursuant to the JPOA. In return the E3+3 was supposed to ease back on certain financial and economic sanctions imposed against Iran during the implementation of each step of the enrichment program. The E3+3 and Iran, all parties to the JPOA, were responsible for implementation and completion of the JPOA terms. The IAEA was responsible for verification of nuclear-related measures, in addition to its monitoring activities under its Comprehensive Safeguards Agreement ("CSA") and its Joint Statement on a Framework for Cooperation Agreement with Iran.
In November 2014 the JPOA was extended until June 30, 2015 in order to allow the E3+3 and Iran to agree on the comprehensive long-term plan provided by the JPOA and end the decade-long impasse between Iran and the West. In the meantime, the E3+3 issued statements assuring the international community that both JPOA parties had implemented their respective commitments without any violations or impediments.
It is therefore surprising that Iran is alleged to fail to comply with the JPOA. ISIS referred to the IAEA report of November 2014 and claimed that Iran was feeding uranium hexafluoride gas ("UF6") into the IR-5 centrifuge at the Pilot Fuel Enrichment Plant at Natanz, in violation of its commitment to freeze its centrifuge activities at the plant during the period of the JPOA. The IAEA report points out that Iran did not suspend all of its enrichment-related activities, violating IAEA Board of Governors resolutions and UN Security Council resolutions. In relation to activities on the plant, it points out that Iran has been "intermittently feeding natural UF6 into the IR-5 and IR-6 centrifuges." The institute relies on this information to claim Iran violated its obligations under the JPOA.
In addition, the latest IAEA report [PDF] of February 19, 2015 points out that two measures (relating to initiation of high explosives and neutron transport calculations) of the Cooperation Agreement third step remain outstanding despite several reminders made to Iran. Importantly, these obligations arise out of the cooperation agreement and not the JPOA. Therefore, Iran is not violating the JPOA.
The IAEA also urges Iran to cooperate to assure the peaceful nature of its nuclear program, especially with respect to undeclared nuclear material and activities, as it is still unable to "conclude that all nuclear material in Iran is being used for peaceful activities."
This article considers two issues: whether Iran violated the JPOA terms and whether the IAEA has a mandate to monitor and verify if Iran uses its nuclear material solely for peaceful purposes.
I believe Iran does not violate JPOA terms. To analyze if an act violates the JPOA, it is necessary to look at the JPOA terms. Iran is claimed to feed natural UF6 into the advanced IR-5 centrifuge. Under the JPOA terms, Iran has agreed that "it will continue its safeguarded R&D practices including its current enrichment R&D practices, which are not designed for accumulation of the enriched uranium." The IAEA report of November 11, 2014 mentions in paragraphs 25 and 26 that Iran has been feeding natural UF6 into the IR-5 centrifuge and IR-6 centrifuge as single machines, in the R&D area of the Natanz plant. However, no low-enriched uranium has been withdrawn as the product and the tails have been recombined at the end of the process. Since Iran has not been enriching uranium in the advanced centrifuge (and therefore no question of accumulation arises), the act of feeding the centrifuge with natural UF6 cannot be construed as a violation of the JPOA terms.
In addition, the alleged activity is being carried out in the R&D area of the Natanz plant. According to the JPOA, Iran is entitled to continue "its safeguarded R&D practices including its current enrichment R&D practices," which implies that Iran could enrich uranium (up to 5 percent) for R&D purposes as long as it does not use such practices to accumulate enriched uranium. Furthermore, Iran has agreed in the JPOA not to make further advances of its activities at the Natanz Fuel Enrichment Plant, and it must be appreciated that no such undertaking has been provided for the Natanz plant R&D facility.
Moreover, the Natanz plant is a declared facility under Safeguards verification with IAEA. Since the Natanz plant facility is subject to IAEA monitoring, the IAEA provided no evidence to substantiate that the above activity could be linked to a military diversion or to divert nuclear material for creating weapons grade uranium. It is relevant that the IAEA itself has concluded that the plant facility has operated as Iran declared in the relevant design information questionnaire. Interestingly, the IAEA report of February 19, 2015 does not mention feeding the IR-5. Thus, Iran is complying with the conditions of the JPOA extension. Having said that, the right to R&D activities is available to Iran under the JPOA.
The JPOA contains words like "voluntary" and "would undertake," which seem to refer to the legally non-binding character of the JPOA. Notwithstanding the arguments referring to the JPOA, the right to use nuclear energy is available to Iran under a legally binding international treaty. Iran is a Non-Nuclear-Weapon State under the Nuclear Non-Proliferation Treaty and thus has the inalienable right under Article IV(1) to "develop research, produce and use nuclear energy for peaceful purposes without discrimination," subject to Iran not manufacturing nuclear weapons, and entering into a safeguards agreement with the IAEA. Iran has signed a CSA with the IAEA and so far, the IAEA has not provided any credible evidence to prove that Iran has manufactured a nuclear weapon. Therefore, Iran has the right to use nuclear energy for peaceful purposes.
Since the language of Article IV(1) uses the terms "develop research," "produce" and "use," it can be argued that the process of "producing" nuclear energy could include the process of enrichment of uranium, as it is one of the processes involved in producing nuclear energy. Most of the 500 commercial nuclear reactors in the world use uranium enriched in isotope U-235 for producing fuel. Natural uranium consists of two isotopes, U-235 (0.7 percent) and U-238 (99.3 percent). The process of isolating the 0.7 percent U-235 to about 5 percent U-235 (relative to U-238) is referred to as enrichment. Most commercial nuclear reactors are light water reactors and require 5-percent enriched U-235 for its fuel. Therefore, in view of Article IV(1), the word "produce" can be arguably interpreted, in its ordinary meaning, according to the general principles of treaty interpretation, to include uranium enrichment.
Therefore, Iran has not violated the terms of the JPOA by feeding the IR-5 centrifuge in the Natanz PFEP R&D facility with natural UF6.
The other issue seems to be the IAEA observations that they are not sure whether Iran uses nuclear material solely for peaceful activities. The question is whether the IAEA has the mandate to make this determination regarding "all" nuclear material in Iran. I believe there is no legal mandate for the IAEA to determine whether all the nuclear material in Iran is being used for peaceful purposes. Under the CSA, the IAEA has the authority to verify declared materials and facilities for the exclusive purpose of verifying the non-diversion of fissile materials for military purposes. Under the JPOA, the IAEA has the authority to conduct enhanced monitoring activities at declared facilities. Finally, under the cooperation agreement, the IAEA has the authority to investigate declared sites in the Annex to the cooperation agreement.
It is submitted that the JPOA and the cooperation agreement increase the scope of the IAEA's verification mandate but still does not provide the authority to the IAEA to make a determination about all nuclear material in Iran. Besides, considering Iran did not ratify Additional Protocol, the IAEA does not seem to have a legal mandate to go beyond verifying the accuracy of the declared material and facilities, and therefore, their observations about not being able to conclude that all nuclear material in Iran is being used for peaceful purposes have no legal basis.
It is worth noting the IAEA submitted no evidence to justify its suspicions of Iran's diversion of enriched uranium towards creating weapons of mass destruction. Furthermore, it must be appreciated that the IAEA and the parties to the JPOA have not alleged any violation by Iran under the JPOA. This being the case, it is puzzling that the allegation of non-compliance with the JPOA is floating around, courtesy of the institute [PDF], and not the IAEA as indicated in various articles.
In conclusion, the JPOA actually recognizes the right of Iran to enrich uranium for use in peaceful purposes, and therefore, Iran has not violated the JPOA terms by feeding UF6 to an IR-5 centrifuge in the R&D facility at Natanz. There is absolutely no evidence to the contrary (as to purpose), and as a consequence, the allegation by the Institute, riding on the IAEA report, seems to be unwarranted. In fact, in view of the CIA whistleblower revelations in a recent case in US court, the veracity of evidence provided by intelligence agencies, including those of the US, regarding alleged clandestine nuclear activities in Iran during the period leading to the imposition of sanctions by the UN Security Council has been tainted beyond doubt.
Saroj Nair is a student of the LLM program in Human Rights at the University of Hong Kong Faculty of Law. She received her law degree from the Government Law College of the University of Mumbai, and an LLM in Criminology from the University of Mumbai. She also has a Bachelors degree in Chemistry and a Masters degree in Business.
Suggested citation: Saroj Nair, IAEA, Iran and the Joint Plan of Action: A Toast to Genuine Diplomacy or Survival of the (Politically) Fittest, JURIST - Student Commentary, Mar. 14, 2015, http://jurist.org/student/2014/12/saroj-nair-iran-nuclear-program.php.
Most individuals who hear about King's eventual capture would be relieved: they feel safer, they feel better protected and they feel that justice has been served. But there is a bigger, more serious concern lurking in the background: DNA collection from arrestees violates the Fourth Amendment. The Fourth Amendment prohibits searches and seizures executed without a warrant or probable cause. This important protection is explicitly violated each time law enforcement collects and processes an arrestee's DNA, because there is no probable cause to search the arrestee for any crimes other than the one he was arrested for.
Unfortunately, this concern fell on deaf ears when the US Supreme Court, in Maryland v. King, determined that arrestee DNA collection is constitutional because it helps law enforcement confirm an individual's identity. But the court relied almost entirely on a false premise in reaching this conclusion. As Justice Scalia pointed out in his dissent, an arrestee is not "identified" when his DNA sample matches an unknown DNA sample recovered from an unsolved crime scene. Rather, an arrestee is "identified" through the process of fingerprinting, measurements and photographs. The majority's decision rests on shaky grounds, and the constitutional deprivations that will follow are extremely worrisome.
The first flaw in the court's decision is its mischaracterization of an arrestee's expectation of privacy. The Supreme Court has previously held that in order for an individual to contest a search, that individual must have an "expectation of privacy" in the area to be searched. The majority asserted that since arrestees are in the custody of the police, they should necessarily expect that their privacy will be intruded upon (i.e., have their DNA collected and searched), the argument goes. But this lack-of-privacy argument fails to recognize that although arrestees are in police custody, they are not similar to convicts or parolees, who have already been proven guilty of a crime and justifiably retain no expectation of privacy. (Prior Supreme Court cases have established that convicts and parolees have a diminished expectation of privacy.) Instead, arrestees are presumed innocent until proven guilty, a basic tenet of American criminal law, and thus retain an expectation of privacy.
As such, the collection of arrestee DNA is unjustifiably intrusive. But criminals like King are not the only ones that should be worried about the court's recent decision. Falsely accused individuals, offenders of non-violent crimes and completely innocent arrestees must have their DNA collected too. In addition to the wrongful use of a person's DNA to search for a link to unsolved crimes, what makes the collection objectionable is that the federal DNA statute is silent about what happens to the DNA sample. Currently, the DNA information from the sample gets stored as a DNA "profile" on a nationwide database for criminals. If an individual is later found innocent or not prosecuted, the government must destroy the DNA profile after the arrestee obtains a final court order stating that he may have his profile removed. The actual DNA "sample," however, is indefinitely retained by the government—meaning that law enforcement retains unbridled access to the sensitive, private information that DNA stores. I can't help but reference the Orwellian undertones evident in this limitless grant of police authority.
Further, because DNA contains sensitive genetic information, it can be used to perform familial searches. A familial search is a partial search in which law enforcement, who cannot match a recovered DNA sample from a crime scene to a DNA sample in the nationwide database, search the database for someone who might be related to the recovered sample. If a familial relationship between the known individual in the database and the unknown sample is shown, law enforcement can find and investigate the known individual and his family in efforts to find the true perpetrator. This has serious privacy implications. First, it subjects purely innocent individuals to harassment and investigation by law enforcement. Secondly, African Americans are more likely to be the subject of this harassment, since they represent about 40 percent of people convicted of felonies each year. One study showed that 17 percent of African Americans could be identified through familial searches—a stark contrast to the 4 percent of Caucasians who could be identified through familial searches.
Are you still unconvinced of
The Fourth Amendment is the heart of our protections against intrusions by the government. As such, a search incident to arrest may only be executed to yield either weapons or evidence that the individual may destroy, or evidence that is relevant to the crime of arrest. In searching an arrestee for his DNA, none of these objectives are satisfied. That the government can come up with a practical need for requiring arrestee DNA collection is not a reason to eviscerate our exceptional Fourth Amendment rights.
Christen Giannaros earned a B.A. in Political Science and Sociology from Queens College. Christen interned with Sony Music's Legal Department, and currently serves as a law clerk for Bondi Iovino & Fusco. Christen also serves as an Internal Competition Director for the St. John's Moot Court Honor Society.
Suggested Citation: Christen Giannaros, Why Collection of Arrestee DNA Violates the Fourth Amendment, JURIST - Student Commentary, Feb. 18, 2015 http://jurist.org/student/2015/02/christen-giannaros-fourth-amendment-dna-collection.php
Back in August 2014, Judge Hinkle ruled as part of a federal lawsuit that the state's ban on same-sex marriage was unconstitutional. Judge Hinkle then gave the attorney general a substantial amount of time to file an appeal, which temporarily suspended the judge's decision. Nonetheless, the attorney general's attempts to extend the deadline failed, allowing for same-sex marriage licenses to be issued beginning at midnight on Tuesday, January 6, 2015. However, Miami-Dade County Circuit Judge Sarah Zabel did not feel the need to wait until the statewide ban expired and presided over the state's first legal same-sex marriage on Monday afternoon.
As Florida becomes the thirty-sixth state to recognize same-sex marriage, it is apparent that much has changed since the 1970s when Anita Bryant launched her national campaign against gay rights. The drastic change in Florida's view on gay marriage may have been met with resistance from conservatives further north in the state, but could potentially spark change across much of the Deep South. Former Florida Governor Jeb Bush has been a long-time opponent of gay marriage, but made statements regarding the legalization of same-sex marriage by urging supporters and opponents alike that "we have to respect the law." He made no mention or insinuation of challenging the ruling. In fact, his comments seemed to tacitly approve same-sex marriage, or at the very least, to tolerate it. However, with this tacit approval comes the blatant disapproval of same-sex marriage in certain counties within Florida. Duval County stated that they would no longer hold ceremonial courthouse weddings, as they feel marriage should be between a man and a woman, with the Clerk of Courts stating that it would go against his beliefs to perform a ceremony that is not between a man and a woman.
The argument against support of same-sex marriage stems from a "not ready" viewpoint where gay marriage should not be pushed on states in the Deep South as they just are not ready for this type of change. But that argument may be lacking muster by the day, as Alabama's same-sex marriage ban was struck down by a federal judge just weeks after Florida's acceptance of gay marriage. A federal appeals court judge also ruled against delaying the overturning of Alabama's gay marriage bans. In a case where a same-sex couple was seeking recognition of their out-of-state same-sex marriage, US District Judge Callie V.S. Granade stated that Alabama's 2006 "Sanctity of Marriage Amendment" violated both the due process and equal protection clauses of the Fourteenth Amendment. Judge Granade explained that Alabama's prohibition undermined its goal of promoting "optimal environments for children" as it discriminated against children being raised by same-sex parents and those being raised by opposite-sex parents. After Judge Granade's ruling, Alabama Attorney General Luther Strange asked the US Court of Appeals for the Eleventh Circuit to extend a stay on Judge Granade's decisions so that he would be able to appeal the decision. The Eleventh Circuit denied that request, allowing for gay couples to marry after the stay expired.
The Attorney General of Alabama filed a motion asking the judge to put the decision on hold until the US Supreme Court has made a ruling. After the Windsor decision, the Supreme Court continued to deny appeals to hear seven same-sex marriage cases in five states. After the Supreme Court's denial, "seventy percent of Americans now live in states where same-sex couples can legally wed." Finally, the US Supreme Court agreed to hear four new cases on same-sex marriage dealing specifically with the power of states to ban same-sex marriage and to refuse to recognize same-sex marriages performed in other states. As arguments against same-sex marriage continue to fail even rational basis scrutiny, it has become harder and harder for courts to uphold marriage bans. As more and more same-sex couples adopt and raise children, courts have to deal with not only the rights of same-sex couples, but the rights of their children as well. And when children are involved, the best interests of the children are at the forefront of the courts' decisions.
Even Mississippi has shown a slight shift in its approval of same-sex marriage. In 2004, eighty-six percent of Mississippi's population approved of the state's same-sex marriage ban. However, recent polls show that the opposition towards same-sex marriage has weakened as more same-sex couples raise children. According to the Williams Institute, approximately 26 percent of same-sex couples in Mississippi are raising children and that percentage is on the rise. In November 2014, just before Thanksgiving, Judge Carlton Reeves heard a case in his Jackson, Mississippi courtroom where a same-sex couple, married in California, was fighting for both partners to have parental rights of their two children. When Mississippi's lawyers made the argument that Mississippi wasn't ready for such a change and that the issue of recognizing same-sex marriage in Mississippi should not be rushed by the courts, Judge Reeves could not help but disagree. His reasoning was that when Brown v. Board of Education was decided in 1954, it took approximately twenty years before his first-grade class was integrated, strengthening the argument that one cannot wait around for change to happen, sometimes there needs to be a push. Judge Reeves further mentioned that "tradition" is not enough to uphold Mississippi's same-sex marriage ban and that gay and lesbian couples can no longer be treated as second-class citizens. Furthermore, a federal judge in Texas struck down a same-sex marriage ban; however, the ruling has been postponed pending a state appeal. There is also a challenge to a similar marriage ban in Louisiana that is currently pending.
Even with same-sex marriage gaining wide success across the US, the increasing acceptance in the Deep South demonstrates just how far we've come in the battle for equal rights. This effort can be seen in Mercedes Ricks, a 50-year-old native of Colombia and an openly LGBT elected official of Magnolia, Mississippi. Ricks understands the power that acceptance of same-sex marriage in southern states, like Florida and Mississippi, has over other southern states and believes that more southern states will follow in Florida's footsteps. A friend of Ricks stated that obtaining equality in states such as Florida, Mississippi and Alabama can have a monumental impact on acceptance everywhere. He explained, "Let's go to Arkansas, let's go to Mississippi, let's go to Alabama . . . because if we can get equality there, then we've won America."
Other southern states have recognized same-sex marriage, including North and South Carolina as well as Virginia. However, the marriage bans in Florida and Alabama are the first to be deemed unconstitutional in the Deep South. Since the 2013 ruling that DOMA was unconstitutional, there has been a sweeping majority of states striking down marriage bans across the country. The question remains whether or not more states will continue to find same-sex marriage bans unconstitutional or if they will wait to hear what the Supreme Court has to say on the matter in June.
While Florida became the thirty-sixth state to support and allow same-sex marriage, Alabama has become the thirty-seventh and we can see the tides changing. More and more people are accepting that gay couples are entitled to the same benefits as heterosexual couples, including the right to marry. Florida's explicit disapproval of a gay marriage ban has raised awareness across much of the Deep South, forcing other judges, courts, and legislatures to acknowledge that change is coming and Florida is responsible for it. We've already taken Florida, Alabama, the Carolinas, Virginia, West Virginia and Alabama. We're rapidly gaining momentum toward nationwide acceptance of same-sex marriage. Once acceptance is apparent in the South, there is no question that the battle for equality will succeed, and we will owe that success to Florida.
Brittney Millay is a second-year student at New England Law | Boston, where she serves as Vice President of the New England Law|Boston OUTLaws. She is also an Associate on the New England Journal on Criminal & Civil Confinement.
Suggested Citation: Brittney Millay, Will Florida Mark the Path for Acceptance of Same-Sex Marriage in the Deep South?, JURIST - Student Commentary, Feb. 18, 2015, http://jurist.org/student/2015/02/brittney-millay-florida-marriage.php.
The supporters of using ODR have pointed out the following advantages of the new system: time and cost savings, greater control of the parties over the proceedings and convenience of the procedure. At the same time, the proposed system of consumer rights enforcement has been heavily criticized for a number of reasons, such as "putting efficiency above judicial scrutiny," loss of public access, pressure due to general confidentiality of ADR and ODR proceedings and banning access to courts. While national judicial enforcement systems are increasingly losing their importance, the opponents of changes raise a general question concerning the legitimacy of the new "private" system of consumer rights enforcement and a more specific issue which relates to compliance of new mechanisms with the due process requirements. As was once noted by Dr. Jürgen Bast, "certain requirements of procedural due process are recognized in EU law as fundamental rights." Therefore, Dr. Bast concludes that "recognition of fundamental rights as an integral part of the union legal order implies that the member states have to respect these rights when they act within the scope of EU law." So when the member states are implementing the provisions of the ODR Regulation and the ADR Directive, they cannot derogate from certain due process requirements.
The primary sources of fundamental rights in the EU are the European Convention of Human Rights [PDF] and the EU Charter of Fundamental Rights. Article 6(1) of the Convention contains the following due process requirements that need to be followed in the determination of civil rights: independent and impartial tribunal, trial within a reasonable time, access to court, right to a public hearing and right to a fair hearing. Article 47 of the EU Charter of Fundamental Rights establishes a broader list of due process rights: right to a fair hearing, right to a public hearing, hearing within a reasonable time, independent and impartial tribunal, access to counsel and the right to defense and representation. As was pointed out by Jonathan Cooper of Doughty Street Chambers, "Article 47 draws no distinction between civil and criminal matters. All that is required to engage the Article is the violation of the rights and freedoms guaranteed by EU law."
At the same time, the privatization and fragmentation of consumer rights enforcement is not merely a European, but an international trend. Several years before entry into force of the ADR Directive and the ODR Regulation, Professor Fabrizio Cafaggi noted that "[EU and US] are reshaping their global policies, redefining the balance between private and public enforcement." The most representative of such "redefinitions" is UNCITRAL Working Group III sessions on the Draft Procedural Rules for Online Dispute Resolution for Cross-border Electronic Commerce Transactions. These draft rules are a collective attempt to create a comprehensive online dispute resolution mechanism for B2B (buyer to buyer) and B2C (buyer to consumer) disputes arising out of cross-border, low-value transactions conducted by means of electronic communication. The proceedings of the Working Group III show the differences that exist between various legal systems in their approaches to foundations, purposes and characteristics of the due process. These differences have fundamental roots because, as was noted by Samuel Issacharoff and Geoffrey Miller, "for countries steeped in the civil law tradition [most EU member states], the move away from centralized public enforcement is a sea change in legal structures." So, what can be viewed from the European perspective as achieving a proper balance in due process standards is at the same time considered by the US lawyers an unfriendly intrusion of consumer legislation into freedom of contract. The resulting disagreement makes the creation of the comprehensive global dispute resolution system less feasible.
One of the main impediments to the creation of the uniform ODR procedural rules is the obligations under the European Convention on Human Rights that prevent the parties to the convention, including the EU, from making ODR binding for the consumers before the dispute has arisen. Binding ODR will violate the right to court access contained in Article 6(1) of the Convention. However, there seems to be no disagreement between all of the involved stakeholders that a global ODR system should be developed based on general due process principles, such as fairness, transparency, effectiveness and independence of the decision making body. Those principles can be adapted to local needs, and the differences in their interpretation are inevitable, for as was asserted by the Supreme Court in Mathews v. Eldridge, "'due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances."
The creation of a "one size fits all" model for online resolution of disputes arising out of B2C transactions has proven to be a very challenging task on the level of EU, not to mention on the global scale. The analysis shows that even within the EU member states, there are different approaches towards a number of issues, such as the use of in-house arbitration procedures for ODR purposes, binding nature of the ODR entity's decision and procedural rules which member states can choose to permit certified ODR providers to apply. The ODR Regulation states that "ADR entities to which a complaint has been transmitted through the ODR platform should...apply their own procedural rules." At the same time, as was noted above, the EU is the pioneer in the field of creating a comprehensive ODR system for cross-border consumer transactions. Therefore, it is very likely that once the EU ODR system is fully implemented, a number of due process acquis communautaire will be imported by UNCITRAL into its draft rules.
Anastasia Konina plans to complete her LL.M in International and Comparative Law at the University of Pittsburgh School of Law in May 2015. She received a Bachelor of European and International Law in 2009 and her Master of European and International Law in 2011 from the Moscow State University of International Relations.
Suggested Citation: Anastasia Konina, Application of Due Process to Consumer Online Dispute Resolution, JURIST - Student Commentary, Feb. 12, 2015, http://jurist.org/student/2015/02/anastasia-konina-due-process-dispute-resolution.php.
Then you enter public school. Unfortunately, your school district does not feel the same way about your desire to be treated like a girl. Instead of allowing you to express yourself as a girl, the school decides to force you to use the bathroom associated with your birth certificate. When you complain and ask to use the girl's bathroom they respond by allowing you to use the faculty bathroom: a single-person bathroom. But, this singles you out because you are the only student using this bathroom; thus, by allowing you access to the staff bathroom the school has made it clear you are different than all the other children and must be treated as such.
The above story is not unique to any one individual, but rather is one of the shared experiences by children who identify as transgender, which means that the gender with which they identify does not match the sexual identity assigned by their birth certificate.
In California, Governor Jerry Brown signed the School Success and Opportunity Act, which allows any child in K-12 public schools to use the bathroom, locker room and participate on sports teams of their gender identity, irrespective of what their birth certificate says that their sex is. In this context, gender identity is a person's private sense of gender. However, since its inception, the law has been under constant attack from groups who are adamantly against allowing transgendered individuals to use the bathroom of their gender identity. While so far their efforts through the ballot initiative system have failed to garner enough verifiable signatures to put it on the ballot, a more insidious challenge is about to be undertaken by these groups. They have begun to solicit potential plaintiffs for lawsuits based on the alleged infringement of the right to privacy of the objecting children who would share the same bathroom with the transgendered children. And the problem is that based on the current judicial landscape these sorts of challenges have the power to overturn the law and force transgendered children to using the bathroom of their birth certificate sex. The reason is that many courts have concluded that the right to privacy includes the right to be free from the opposite sex when using the bathroom. Since there is no indication that the courts' interpretation of this constitutional right will change, a great danger exists that the law will be declared unconstitutional.
If the law is declared unconstitutional, then transgender students in California will once again be forced to use the bathroom of their birth sex and not their gender identity. This will have dire consequences for transgender students because they will be forced to realize that they are different than other students and treated differently than them. Every time that a transgender student uses the bathroom he/she would be forced to realize that he/she is "abnormal that there was something so grotesque or unsafe about her that her very presence in a place as delicate as a bathroom was intolerable." In essence, overturning this law would make an entire subsection of the student population feel like outcasts.
To make certain that the transgender student body is allowed the same freedoms as their non-transgender counterparts, society must begin to move to a more transgender inclusive model of bathrooms: the gender neutral bathroom. This model envisions bathrooms that consist of multiple stalls where people could "do their business" and then there would be a communal sink area. Anyone could use this bathroom because there would be nothing in the bathroom that would make it inherently made for one sex or gender (like a urinal).
These sorts of bathrooms would be in step with society's direction. For instance, many colleges, such as Grinnell College in Iowa, have begun to install gender-neutral bathrooms. Further support comes from new guidelines promulgated by the Department of Education on how teachers and administrators should deal with gender identity in public schools. In Massachusetts, the Department of Education recently established guidelines [PDF] that schools should follow to ensure students can access bathrooms that match their gender identity. Connecticut also passed [PDF] similar guidelines.
There is no question that a change to the structure of bathrooms (a closely held societal norm) would have its opponents, especially when it comes to implementation in public schools. Many would argue that younger children would be uncomfortable using the bathroom with children of the opposite sex and gender because they are at an age where the opposite sex is still seen as "having cooties." However, this concern is ameliorated when looking at how children begin to use bathrooms when they are growing up. Normally, a child using public bathrooms will be accompanied by a parent. When the parent of the same sex is not available, the child will generally follow the parent of the opposite sex into the "opposite" bathroom. Thus, children who are younger will have already been exposed to bathrooms of the opposite sex and this can be used as a learning experience for the child. The parents can talk to their children and help them understand that a bathroom is simply a place to "do their business" and not for anything else. Much like other public spaces that are used, early implementation and parental teaching will help the child to adjust.
Even further, opponents would argue that as children aged and began to go through the hormonal changes associated with manhood and womanhood, these bathrooms would be problematic because putting both sexes and genders in the same location could lead to misuse of the bathroom and potential feelings of discomfort. This misuse could include increases in sexual harassment, while the discomfort could come from situations such as when a girl begins to menstruate when a male is in the bathroom. However, this potential problem is combated by the structure and early implementation of the bathrooms. Since the gender-neutral bathrooms would be implemented when the students were young, as they grow older, the bathrooms would lose their novelty and would simply be a place to do their business. Any wrongdoing that would occur in the bathroom would be monitored the same way as if there was wrongdoing now: it would be reported by a fellow student who observed the wrongdoing, and the offender would be reprimanded and hopefully taught to abide by the rules. If a particular student continues to use the bathroom in inappropriate ways (i.e. as a means for easy access to the opposite sex in order to harass them), then he/she should be punished and not the transgender students who only want to use the bathroom that allows the full expression of the person that they are inside.
Also, the structure of the bathroom should help people feel more comfortable. Even in a situation where a girl begins to menstruate or might feel uncomfortable with a male in the bathroom, the fact that there are stalls gives a modicum of privacy to the individual. Since this is a public bathroom the students would not have complete privacy, but only the privacy that is found in bathrooms now. Thus, a student who is uncomfortable would have to be dealt with along the same lines as a student who is uncomfortable in the bathroom around other people of the same sex now. They would be given the option to use a faculty bathroom or made to feel comfortable through education and the like.
The California law is necessary to protect transgender students from harassment and to allow them to feel comfortable in a school setting. Unfortunately, there is a good probability that the law will be overturned on right to privacy grounds. To make certain that transgender students are given the equality they seek, it is necessary for society to do what the courts cannot: create bathrooms that are gender neutral. It is only in this way that equality will be achieved.
Brian Eisner earned a B.A. in English/Comparative Literature/Psychology from Binghamton University. Brian is a Juris Doctor candidate at St. John's University School of Law. Brian is currently a law clerk for the Law Office of Joel S. Charleston. Brian currently serves as Notes and Comments Editor for the Journal of Civil Rights and Economic Development.
Suggested citation: Brian Eisner, "The Civil Rights Issue of Our Time": Transgender Equality and the Right to Choose Your Bathroom, JURIST - Student Commentary, Feb. 2, 2015, http://jurist.org/student/2015/02/brian-eisner-gender-equality.php.
As is outlined in Judge Sarah Zabel's Florida Circuit Court decision in Pareto v. Rubin, social unrest and debate leads to the expansion and recognition of constitutionally fundamental rights. The debate over same-sex couples' fundamental right to marriage exploded onto the national canvas throughout 2014. In response to this discussion and the social conflict that has spawned from it, the Supreme Court made an announcement on January 16, 2015 that our country and, indeed, the entire global society, was anxiously awaiting: the court will finally address the constitutional issue of state bans on same-sex couples' right to marry. And, while this decision is clearly going to be a controversial one, it is most certainly not premature from a social, political or judicial viewpoint. To date, 36 states have adopted laws that recognize same-sex couples' fundamental right to marriage, either through judicial decree or legislative procedures. That is more than half of the US individual jurisdictions combined. Support for the benefits of marriage equality has come from practically every aspect of society, either tacitly or through more direct forms of communication. In May 2012, President Obama publicly supported the extension of the fundamental right to marriage for same-sex couples, becoming the first sitting President in our nation's history to do so. Even the Pontiff of the Roman Catholic Church, arguably one of the most conservative and traditional organizations in the world, has expressed a change in view regarding the benefits of unions for same-sex couples, albeit far from the open arms that American society seems to be extending. While neither the Executive Branch of the US Federal Government nor the Roman Catholic Church has the authority or power to interpret, broaden or else expand the fundamental rights of the US Constitution, communication from these institutions, and so many others, is illustration of the breadth, depth and scope that this universal debate has had on our global society.
Furthermore, the significant increase of states that officially recognized same-sex marriage within their jurisdictions over the last four months is a clear indication that the recognition of marriage between same-sex couples is no longer the scandalous and dramatically misunderstood issue that it once was even less than five years ago. As Mr. Lyle Dennison, contributor to SCOTUSblog, writes, "Since the Supreme Court last took action on [this] issue, denying review on October 6 of cases from five states, same-sex marriages have become legal in seventeen more states." As this issue continues to develop through the judicial system on both the state and federal levels, it is becoming increasingly clear just how highly fundamental the right to marry is considered to be within the American culture.
It will be interesting to see how the justices approach the final resolution of this provocative consideration. The academic and professional arenas agree that the main substantive issues that the court must decide will focus on the Equal Protection and Due Process elements of this matter: deciding, once and for all, the generation-long question of whether or not same-sex couples have a constitutionally protected right to marry. Moreover, the court will be tasked with the everlasting burden of determining which level of scrutiny will be appropriately applied to this decision-making process. If approaching the analysis from a position that primarily focuses on Equal Protection, the court will likely apply strict scrutiny in determining whether or not a particular state's statute has a legitimate governmental interest in its purpose, and whether or not such an alleged interest can be more narrowly tailored by the State so as to not affect the fundamental right at issue. Alternatively, if the court approaches the analysis from an angle that focuses in on the Due Process arguments, all that the Court must do is apply a rational basis review in determining whether or not the State successfully argues that there is a substantial governmental interest that is rationally connected to the statute in question. Or, the court might perhaps tread a course that falls in between the two extreme levels and adopt a more intermediate level of scrutiny in balancing a particular state's interest against the right of individual citizens that is at stake. Yet, it is abundantly clear how essential the majority of the US holds the right to marry to be a constitutionally protected right of all American citizens, regardless of sex, gender or sexual orientation. Furthermore, it is important to note that it would likely be detrimental to the current position of case law, and indeed much of the current legislation involving Equal Protection, for the Court to hold that marriage is not a fundamental right afforded to all American citizens since the development of the Supreme Court's precedent over the last few decades has interpreted the country's constitutional law to hold otherwise.
While arguments that oppose the official recognition of same-sex marriage adamantly hold that the Supreme Court should apply a modest "rational basis" test under a Due Process analysis, such opinions will likely not pass muster with the court. Opponents of marriage equality focus their argument on the fact that states have a legitimate interest in the protection of traditional family values and in regulating marriage for the purpose of sustaining the legitimacy of biological childrearing. The crux of the opposition's argument does not extend its substantive reasoning much beyond the formalism of traditional family values and the protection of the conventional child-rearing process. However, it has been determined time and again that the societal structure of the modern family has significantly evolved beyond that of the traditional, biological organization. As Judge Zabel aptly wrote in Pareto, "Tradition alone does not constitute a rational basis for any law..." Furthermore, there is ample research and documentation that the benefits of a family relationship can be, and are, established in dynamics that diverge from the traditional household. In today's society, modern families are created in a plethora of motivated structures—adoptive families or close bonds between extended family members or friends just to name a few common relationships. Just as the breadth and expansion of fundamental, constitutional rights have occurred over the centuries, so similarly has the definition and interpretation of the concept of family. As such, it is unsound to adamantly argue that the fundamental right of marriage should be denied to same-sex couples on the grounds of tradition preservation and child rearing. Such arguments simply do not reflect the evolution of society in the twenty-first century.
The debate surrounding marriage equality that our nation has witnessed over approximately the last thirty years truly is a testament to the essential processes of a democratic society—freedom of speech, freedom of expression and the ability to safely articulate one's genuine beliefs as part of an environment in which we are not civically oppressed and quelled. All of these characteristics summarize the hallmark of a true democracy. The political history of global society throughout the centuries has shown us that societal evolution is inevitable as a result of public unrest. Our own nation has seen such evolution through the last few decades and the continuation of such progression through the official recognition of same-sex couples' constitutional right to marry is the next logical step in our society's formulation of a more perfect union.
Chris Wester is a second-year student at New England School of Law, where he serves for New England Law|Boston OUTLaws as Representative to the Massachusetts LGBTQ Bar Assocation. He has a BA in Administration of Justice and Psychology from Salve Regina University. He also has a Professional Certificate in Paralegal Studies from Boston University.
Suggested Citation: Chris Wester, The Evolution of a More Perfect Union: The Development of Same-Sex Marriage in the United States, JURIST - Student Commentary, Jan. 24, 2015, http://jurist.org/student/2015/01/chris-wester-evolution-marriage.php.
In Kansas, over 20,000 people were stopped from registering to vote because they lacked proof of citizenship. North Carolina's early voting was cut by seven days. Democrats say that Texas passed the country's toughest voter ID law that contributed to a congressman losing a tight race to his Republican rival. Recent studies have shown that generally voter ID laws are an ineffective way to steal elections and do not affect the outcome of elections. This should not be a partisan issue but an American issue that all should be fighting to resolve. My goal is to enlighten and involve others in this discussion in order to facilitate practical solutions drawing from realistic goals.
Before the midterms, many citizens bemoaned the voter ID laws demanding an overturn, claiming the laws would disenfranchise thousands of registered voters, terminating their eligibility from voting. Recently, the US Supreme Court upheld a 2011 Texas law requiring specific voter identification as constitutional. The Texas law declared that voters must provide government issued photo identification, like a Texas driver's or gun license, a military ID or a passport. Many individuals, including US Attorney General, Eric Holder Jr., civil rights groups and the Obama administration, have challenged the Texas law. Justice Ginsburg wrote in her dissent that this law "may prevent more than 600,000 registered Texas voters (about 4.5 percent of all registered voters from voting in person for lack of [proper] identification.)" Also, she added, that "a sharply disproportionate percentage of those voters are African-American or Hispanic." Yet, Texas officials called Ginsburg's math "preposterous."
The reason given for so many disproportionate victims is that it is difficult for minorities to obtain the required form of identification. Ginsburg wrote, that "more than 400,000 eligible voters face round trip travel times of three hours or more near a government office issuing ID." Furthermore, birth certificates needed for government issued IDs are unaffordable for many. Although, the state usually offers reduced cost birth certificates for election purposes, it is not publicized as an option.
A recent North Carolina Board of Elections study showed that the "so called margin of disenfranchisement" for people without photo identification "grossly overstates the potential electoral consequence of these laws." Primarily, the true number of registered voters without photo identification is grossly overestimated than what is suggested in statistics. The numbers are usually calculated by matching voter registration files with state ID databases, but perfect matching is impossible. In Texas, if you register to vote with a name like "Nate" but your ID says "Nathan" you will be counted as a registered voter without a photo ID. However, you would be able to vote at the polling station because it is "substantially similar" to the one on file. The Board of Elections decided to match the names by additional matching criteria like Social Security numbers and date of birth, causing "the number of unmatched registered voters to plummet from 1.24 million to 318,643."
Furthermore, people who are without IDs are less likely to vote than other registered voters. The North Carolina study showed that 43 percent of registered voters who did not meet the matching criteria, voted in 2012 while more than 70 percent of matched voters exercised their voting rights. Due to these differences in participation, it is unclear whether those without a photo ID would have overwhelmingly supported Democratic candidates. It is clear that voter ID laws had a disparate impact on traditional Democratic-leaning demographics, including young, nonwhite, poor, immobile and elderly voters. However, in this study 22 percent of these voters were registered Republicans making it unlikely the alleged 70/30 margin is fully consistent with Democratic concerns about voter suppression. Thus, a 70/30 fabricated margin is not enough votes to decide anything beyond extremely close elections. Lastly, many of the voters without photo identification will generally cast provisional ballots. Though provisional ballots are not an adequate long-term remedy for voters without identification, 37 percent of provisional ballots cast because of ID reasons were counted in Kansas and 26 percent were counted in Tennessee in 2012.
With all the mitigating factors, it is difficult to show a relationship between voter ID laws and swinging elections unless it is a very close election. Throughout history, Democratic candidates won in states with voter ID laws. For example, President Obama won in Indiana directly after the state passed a restrictive voter ID law in 2008. Despite this, history has proven that: voter fraud is nonexistent and voter ID laws do not swing elections. But that should not be the focus since both party's interests creates a solvable paradox. The two competing interests at stake deserving of focus are voter fraud and voter disenfranchisement. Both political parties should acknowledge the others concerns and partner to solve them. However, once again lawmakers have been allowed to politicize the issue making it a partisan rather than an American issue.
The goal should be to shed light on the issue expanding the audience in search of solutions. It is saddening to see the number of people affected by discriminatory laws. Whether the law's intention was to discriminate or not, the outcome is unacceptable. It appears we are not digging deep enough into this issue. It is doubtful that the Civil Rights movement of the 1960s would have allowed an ID law to stop their community from voting.
The solution is clear—overturn the laws. Yes, striking down the laws would initiate a long and ominous process. But in order to strike down voting discrimination laws, state legislatures and the judiciary must agree that these laws are unconstitutional. How long must citizens wait for their voting rights to be restored? Minorities do not need the government to solve every issue. Understanding the history of racism in this country, is key to recognizing that certain people are subject to laws with a discriminatory effect on minorities. The main issue with voting laws is that people have a hard time getting IDs because of financial and transportation troubles. Rather than wasting precious time trying to convince the government to strike down these laws, we must develop quick and practical solutions to overcome this discrimination.
For example, if finances pose an issue then community based groups need to raise money for indigent people. In addition, if transportation is an issue these groups need to build transportation systems to help these people get to government offices. There are many benefits to having a government issued ID besides voting, but absent solutions, lawmakers will continue to discriminate against minorities in other areas. Minorities are powerful when connected and supporting each other to develop outcomes to current problems, without depending on the government to properly govern.
Justin Camper is a second year student at Valparasio University Law School. He studied political science at Purdue University and has conducted research within politics and law, including presenting his "Affirmative Action in Law Schools" piece at the McNair Nationwide Conference.
Suggested Citation: Justin Camper, Voter ID Madness: The Real Issue with Real Solutions, JURIST - Student Commentary, Jan. 23, 2015, http://jurist.org/dateline/2015/01/justin-camper-voter-id.php.
To successfully establish a claim of racial harassment in the workplace under Title VII, the plaintiff must prove that a supervisor's behavior was sufficiently severe or pervasive in creating a racially-hostile work environment. This standard requires the jury to determine whether the harassment was objectively offensive (a reasonable person would find the harassment hostile and abusive) and subjectively offensive (the plaintiff perceived the working environment to be offensive). In interpreting this standard, the court determined that jurors have to consider the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a mere offensive utterance and whether it unreasonably interferes with the employee's work performance or terms and conditions of one's employment."
This legal standard should be changed for situations where a supervisor calls the employee the "n-word" for three reasons: (1) the "n-word," in itself, is offensive; (2) societal norms deem the word to be offensive and obscene and (3) courts have ruled in racial harassment cases that the "n-word" alone is offensive. Therefore, the process for jury determination should be simpler, and the jurors should have to decide only whether a supervisor called an employee the "n-word" to disparage or belittle him or her instead of having to consider if the word is objectively and subjectively offensive.
The "N-Word," In Itself, Is Offensive
The Merriam-Webster Online Dictionary defines the "n-word" as "the most offensive and inflammatory racial slur in English." The word was used and is still used to intimidate African Americans and to point out their alleged moral and intellectual inferiority. Some may argue that the word is detached from its negative origin because black rap artists use the word in their rap lyrics to give the word a positive meaning. Hip-hop artists use the word to emphasize a self-empowered and self-determined African American identity. Even when blacks drop the "-er" from the word and replace those letters with an "-a," the word can be used in the context of expressing disapproval of someone's actions, and it can retain a negative meaning. Organizations, such as theNational Association of the Advancement of Colored People (NAACP), are working to dispel the myth that the "n-word" does not have a negative meaning. The NAACP held a funeral and burial for the "n-word" in Detroit, Michigan to discourage the entertainment industry from using the "n-word" in videos, songs and stand-up routines. Nevertheless, jurors should not have to prove that the "n-word" is offensive since it is already offensive by definition.
Societal Norms Deem the Word to Be Offensive and Obscene
The use of the "n-word" is socially disapproved, and the use of the "n-word" in literature is also disapproved or banned. Mark Twain's Adventures of Huckleberry Finn is the fourth most-banned book in schools because the "n-word" appears 219 times. In 1957, the New York City Board of Education removed the book from approved textbook lists for elementary and junior high school students. A new edition of the novel replaces the "n-word" with "slave" in an effort not to offend readers.
High-profile or influential individuals, such as actors, television hosts, professional athletes, singers, politicians and teachers, suffer severe consequences for using the "n-word." Jonathan Rhys Meyers, an actor on the television show, The Tudors, was banned from a United Airlines flight when he used the "n-word" to berate an airline employee. Richie Incognito, a football player for the Miami Dolphins,was recently suspended indefinitely for calling his teammate the "n-word" in a voicemail. Jerry Spivey, the District Attorney for North Carolina's Fifth Prosecutorial District, was removed from office after repeatedly calling an African-American man the "n-word" in a bar. In addition, an English teacher at a high school in Denver, Colorado was suspended for using the word during a class discussion. Since societal norms deem the isolated use of the "n-word" unacceptable, the word should be treated the same in the workplace.
Courts Rule That the "N-Word" is Offensive
Courts say the "n-word" does not belong in the workplace. Why? Because "no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as 'nigger' by a supervisor in the presence of his subordinates."
These courts have captured the essence of societal norms, and a new standard would ensure that court rulings are consistent with societal norms. Courts should adopt a "discrimination per se standard" to rule in circumstances when a supervisor uses the "n-word" to belittle or disparage an employee in the workplace. Under this standard, the "n-word," in itself, would be considered to be offensive without considering other factors, such as the number of times a supervisor called his or her employee the word, the race of the supervisor or if the use of the word was objectively offensive. This standard is consistent with societal norms and previous court rulings because using the "n-word" in the media is morally disapproved and courts have ruled, without further analysis, that the word does not belong in the workplace. When jurors are presented with a use of the "n-word" case, they would only have to determine (1) if a supervisor used the "n-word" (2) in the workplace (3) to disparage or belittle an employee. If all three factors are met, the supervisor's employer would be liable for causing a racially-hostile work environment. The employer can assert affirmative defenses. For instance, the employer can show that (1) the employee consented to the use of the word with his supervisor; and (2) the "n-word" was not used to demean the employee because the employee misunderstood the context in which the word was used.
It is simply unprofessional and unacceptable for supervisors to call their employees the "n-word" to disparage or belittle them in the workplace. We can only imagine the number of Brandi Johnsons across the nation who are dealing with uncouth supervisors that drop the "n-word" to intimidate their employees. Hopefully the ruling will deter supervisors from using the "n-word" in the workplace, and plaintiffs will no longer have to convince a jury that it is offensive when a supervisor calls their employee the "n-word" to belittle him or her.
Ayanna Thomas earned a B.A. in Political Science from State University of New York at New Paltz. Thomas currently serves as the Associate Managing Editor of the Journal of Civil Rights and Economic Development.
Suggested Citation: Ayanna Thomas, No Excuses: The "N-Word" Does Not Belong in the Workplace, JURIST - Student Commentary, Jan. 21, 2015, http://jurist.org/student/2015/01/ayanna-thomas-employment-discrimination.php.
By denying an outlet for survivors to seek justice, the painful realities experienced by the Cambodian people and the Cambodian diaspora remain isolated and suppressed. Until recently, no accounts of the Khmer Rouge genocide were included in national textbooks approved by the Cambodian Ministry of Education. The uncooperative nature of the Cambodian People's Party (CPP)—which is run by long-time Prime Minister Hun Sen, a former Khmer Rouge soldier that has been accused of not serving or protecting the interests of the Cambodian electorate—and the inability of the UN to create an international criminal court to try former Khmer Rouge leaders in a timely manner show how both the Cambodian government and Western nations have had certain investments in keeping the truths about the Khmer Rouge genocide hidden.
The Khmer Rouge was overthrown by the Vietnamese on January 7, 1979. However, this genocidal period was followed by an extensive civil war that lasted until 1998—when Pol Pot, leader of the Khmer Rouge, passed away and when the official Khmer Rouge political system and military structures were dismantled. During the civil war, extensive suffering by civilians continued. Those realities were exacerbated by the complicity of the Western world, which allowed the Khmer Rouge to continue to hold its seat in the UN until 1982, without any vocal objections raised by representatives. Because the American military aided Khmer Rouge guerrillas to fight against the Vietnamese who controlled and occupied Cambodia after 1979, the US had actually led most of the Western world to support the exiled Khmer Rouge over the Vietnamese-sponsored government of Cambodia. The US had hoped to use Cambodia to offset the balance of power in Asia, especially after having lost the Vietnam War just a few years earlier.
Issues of international recognition of the Khmer Rouge war crimes and the necessary steps that needed to be taken to hold Khmer Rouge leaders accountable continued to be overlooked even when Cambodian independence from Vietnam was reinstituted. At the Paris Peace Accords of 1991, human rights concerns were raised in Article 15, but they only stated that the Cambodian government must ensure that the Khmer Rouge does not return and that human rights conditions are monitored. Again, there was no mention of creating an international tribunal that would invoke the Genocide or Geneva Conventions on behalf of victims.
Even though the Cambodian government initiated a request for assistance from the UN to try Khmer Rouge leaders for their crimes against humanity in 1997, it was used primarily as a ruse to detract from the political coup that Hun Sen was planning against Norodom Ranariddh, leader of the FUNCINPEC opposition party. Ever since, Hun Sen and the CPP has resisted the establishment of an international criminal court. In a public speech in March 2009, Hun Sen openly said that he would rather the courts run out of money and fail than to pursue additional cases against former Khmer Rouge leaders, many of whom, including Hun Sen, continue to serve as high-ranking officials in the CPP.
Because of the acrimonious debates and impasses instigated by the Cambodian government, it took almost seven years for the UN to agree to a hybrid tribunal. The Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea was signed into effect on June 6, 2003. Ultimately, Hun Sen agreed to a hybrid tribunal that would prioritize the Cambodian section of the court, allowing for a Cambodian judge majority. Also, as stated by the United Nations, "[t]he government of Cambodia insisted that, for the sake of the Cambodian people, the trial must be held in Cambodia using Cambodian staff and judges together with foreign personnel." And according to the law, the ECCC "can only prosecute two categories of alleged perpetrators for alleged crimes committed between April 17, 1975 and January 6, 1979: 1) Senior leaders of Democratic Kampuchea; and 2) those believed to be most responsible for grave violations of national and international law." So far, the tribunal has only considered four main cases: Case 001, 002, 003 and 004. More than ten years after the establishment of the ECCC and more than $200 million in donations later, it has only handed out two verdicts: one against Kaing Guek Eav, alias "Duch," in Case 001 and one against Nuon Chea and Khieu Samphan in Case 002/01. Case 002/02 is currently being considered, and persons of interests for Case 003 and 004 have not been officially released.
In 2010, Duch was found guilty of crimes against humanity and grave breaches of the Geneva Conventions of 1949, especially as related to his involvement in Security Office 21 (S-21) Tuol Sleng Detention Center. Initially, Duch was slated to only serve nineteen years. His sentence was reduced by five years for being illegally detained in military court and by eleven years for that which he served while in detention. But after numerous appeals and public outrage, in February 2012, the "Supreme Court Chamber affirmed Duch's conviction and sentenced him to life imprisonment." The courts also clarified the charges and entered separate convictions for "the crimes against humanity of persecution, extermination (encompassing murder), enslavement, imprisonment, torture and other inhumane acts."
In Case 002, there were four initial defendants: Khieu Samphan, the former nominal head of state; Noun Chea, also known as "Brother Number Two" and the movement's former ideologue; Ieng Sary, the former foreign minister; and Ieng Thirith, Ieng Sary's wife and the former minister of social affairs. But on August 7, 2014, only two judgments for Case 002/01 were handed down because because Ieng Sary passed away in March 2013, and his wife, Ieng Thirith was found unfit for trial because of her degraded mental state from Alzheimer's Disease. Nuon Chea and Khieu Samphan were found guilty of crimes against humanity and sentenced to life imprisonment. On December 29, 2014, Nuon Chea and Khieu Samphan's defense lawyers filed for an appeal against their judgments. The 270-page appeal focuses less on the innocence of the defendants and more on the legal proceedings of the hybrid court system (e.g., definitions of inhumane acts, timelines of forced population movements, political interference and witness questioning). With charges of corruption, graft and government bias and interference, the futures of Case 003 and 004 remain fraught with uncertainty.
Because the ECCC has only made two judgments more than thirty-five years after the fall of the Khmer Rouge, many question the efficacy of the joint tribunal. While most survivors were relieved to have finally sought some sort of recognition and justice, those who were found guilty were already in their 80s and will likely die soon from old age. After the judgments of Case 002/01 were handed down, instead of celebrating the successes of having sought justice, many Cambodian people mourned the losses of opportunities to try more than just three leaders of the Khmer Rouge. With a record of corruption, a lack of funding and international judge resignation, it is unsure how long the ECCC will continue. The multiple contradictions of this hybrid tribunal continue to raise questions about the purpose of the courts, the motives of the CPP and the international community's lack of timely consideration and investment in trying Khmer Rouge leaders.
Yvonne Y. Kwan is a PhD candidate of sociology as the University of California, Santa Cruz. She received a BA from the University of California, San Diego, an MA from the University of California, Los Angeles and an MA from the University of California, Santa Cruz.
Suggested citation: Yvonne Y. Kwan, Missed Opportunities: Impediments to Justice and Recognition in the Khmer Rouge Tribunals, JURIST - Student Commentary, http://jurist.org/student/2015/01/yvonne-kwan-khmer-tribunals.php.
While Emma Watson and the UN Women's HeForShe movement has been criticized by many as focusing too much on women's rights instead of men's, another criticism is that the campaign promotes men to stand up for women as saviors rather than stand with them for basic human rights. The problem with this criticism is that it completely neglects the basic facts and focus of the campaign.
In a recent Time article this year, the author only criticizes Emma Watson (without even mentioning, let alone criticizing, the UN) for neglecting discrimination against men. The author discuses how problems affecting men and boys should be brought to light and how the campaign focuses on "First World problems." However, what the author and many others do not seem to realize is that this campaign seeks to create change in other countries aside from "First World countries" like the US and Britain where women have less rights and respect. To take the HeForShe campaign and criticize it for the work it truly aims to do is baffling. Perhaps the UN has something in the works for men's and boys' rights but in the meantime focusing on women in other countries around the world who are persecuted solely for being female is a worthy cause.
UN Women seeks to advocate for government implementation of national laws, policies and strategies in order to create equality for women globally. The keyword which many seem to overlook is global. While discrimination exists in various forms for various people the aim of this campaign is to focus on the more serious problem of discrimination and violence towards women. According to global reports, 35 percent of women globally have experienced physical or sexual violence, and 70 percent have experienced physical or sexual violence from an intimate partner. In the US, 83 percent of girls grades 8 through 11 have experienced sexual harassment in public schools. Furthermore women in urban areas are twice as likely as men to experience violence, particularly in developing countries.
In a Huffington Post blog from earlier this year, the author argues that instead of standing up for women, as the HeForShe movement implies men should instead be standing with women. While this is true, there are places in the world where some women might need that support and have men stand up for them and fight for their rights. Furthermore, the author suggests, "...there is nothing feminist about a campaign that reinforces a gender binary that is harmful to people whose gender identities don't fit into such tidy boxes." Unfortunately, this campaign does not focus exclusively on countries where many people might have the option of different "gender identities." For example, the well-known Pakistani activist for female education and the youngest Nobel Prize winner Malala Yousafzai is from a part of the world where it is unacceptable to have different gender identities outside of society's norms.
What these and other writers do not understand is that in many countries women need to have men stand up for them because they cannot always stand up themselves. By educating men to advocate for women and respect women it makes it possible for women and men to be able to stand together side by side. More than 1 in 3 girls worldwide are married before age 15 and around 120 million girls have experienced forced intercourse or sexual acts. Over 133 million females have experienced female genital mutilation (FGM), specifically in Africa and the Middle East and around 4 million females are forced into sexual exploitation through human trafficking around the world. If men do not stand up for these females when they stand up for themselves, who will?
Part of Emma Watson's work with UN Women is to help clarify misconceptions of feminism and what it truly means. "I decided I was a feminist and this seemed uncomplicated to me. But my recent research has shown me that feminism has become an unpopular word. Apparently I am among the ranks of women whose expressions are seen as too strong, too aggressive, isolating, anti-men and, unattractive," stated Watson. "Why is the word such an uncomfortable one? I am from Britain and think it is right that as a woman I am paid the same as my male counterparts. I think it is right that I should be able to make decisions about my own body. I think it is right that women be involved on my behalf in the policies and decision-making of my country. I think it is right that socially I am afforded the same respect as men. But sadly I can say that there is no one country in the world where all women can expect to receive these rights."
According to UN Women discrimination and inequality are at the root of violence against women. If women and men have not been able to question gender roles and beliefs they may be unaware of their rights or are unable to claim them. As Malala Yousafzai told the world, "I said to myself, 'Malala, you must be brave. You must not be afraid of anyone. You are only trying to get an education—you are not committing a crime.' I would even tell [my attacker], 'I want education for your son and daughter.'"
UN Women supports prevention activities, research, advocacy, education, community involvement and legal and policy reforms in order to create an international impact. By working specifically with men and boys, UN Women seeks to create perpetual advocacy for ending or at least decreasing violence against women worldwide.
Raising awareness to end violence against women also requires changing the hearts and minds of those in government and the public. Societies need to implement education and understand respecting all humans both male and female. Governments must also recognize the importance of educating both genders on equality at local levels and national levels. Men need to be a vital part of the equation in order for there to be equal rights between men and women. Without men advocating for women there are many who may never experience equality in their lifetime.
Instead of criticizing a solidarity movement meant to generate positive change in the lives of women globally we could applaud those involved with UN Women and commend Emma Watson for her work in spreading change. Gender equality is not uniquely a women's issue; it is a human rights issue that affects everyone of every gender. If society continues to criticize campaigns created to invoke positive change for gender equality then we have not socially evolved as much as we thought we have in this twenty-first century.
Anjelica Violi is currently a second year law student at Valparaiso University Law School in Indiana. Her current e-mail address is email@example.com.
Suggested citation: Anjelica Violi, Educating Men and Boys on Female Advocacy and Equality, JURIST - Student Commentary, Jan. 18, 2015, http://jurist.org/student/2015/01/anjelica-violi-educating-men.php
Today, the nation's police officers aim to be better trained and better equipped to deal with most any situation. Police academies throughout the world educate police officers in many different areas from writing reports to use of force. Law enforcement agencies around the world rely on this initial training in hiring officers.
The US Commission on Civil Rights has stated that in diffusing situations, apprehending alleged criminals and protecting themselves and others officers are legally entitled to use appropriate means including force. Two questions remain: what is reasonable force and what is excessive force? Reasonable use of force is the amount of force necessary to arrest or gain suspect compliance. Excessive force is generally any force that is grossly disproportionate to arrest or gain suspect compliance. This type of force can be inspired by malice rather than mere carelessness or overzealousness and not only does it shock the conscience of the court but citizens alike.
Police academies educate new officers to use the amount of force necessary and reasonable to arrest a suspect. Today's academy instructors are current or former police officers with a wealth of knowledge and experience, who train officers to utilize the proper force in the performance of their duties. The different levels of force police officers have at their disposal are as follows:
Officer Presence: The mere appearance, demeanor and non-verbal communication that should create an atmosphere of compliance.
Verbal Commands: Clear and concise orders or commands given by the officer to the individual and should create an atmosphere of compliance.
Soft Hands: Control techniques that have a low probability of causing connective tissue damage, lacerations of the skin or broken bones and should create compliance. Some soft hand techniques are pressure points and arm bars.
Hard Hands: Control techniques that have a probability of causing connective tissue damage, lacerations to the skin, or broken bones and should create compliance. Some hard hand techniques include hand and leg strikes.
Pepper Spray: A less lethal chemical compound that makes the eyes tearful. The active ingredient in pepper spray is an inflammatory agent that swells up the eyes and mucous membranes of the upper respiratory tract causing pain and temporary incapacitation.
Taser: A less lethal weapon that fires barbs attached by wires to batteries causing temporary paralysis.
Asp Baton/Impact Weapon: A less lethal impact instrument. When expanded, ASP batons can be as short as 16 inches and as long as 31 inches. They are normally around 7 inches long when they are not expanded.
K-9 Units: Highly trained handlers and dogs. They follow both verbal and hand commands of their handler.
Presentation of Deadly Force: The moment when police officers draw their weapons and utilize it as a deterrent or compliance tool but do not discharge their weapon.
Deadly Force: The taking of an individual's life in the line of duty. A last resort.
According to a study conducted by the Bureau of Justice Statistics, contact between police and the public are about equal. About 51 percent of police contacts occurred when persons requested police assistance and 49 percent were police initiated, such as when police pulled over drivers during traffic stops or stopped persons in public places. Of that 49 percent, about 1 percent of drivers pulled over in traffic stops had physical force used against them by police. Of these drivers 55 percent believed the police behaved properly during the stop.
The two recent high profile uses of force incidents, the first in Hammond, Indiana involving Jamal Jones and Hammond Police Department and the second in Columbia, South Carolina involving Levar Jones and former State Trooper Sean Groubert. Both incidents were captured on camera, but each had different outcomes. These incidents, like many others, have refueled a burning fire that has never been extinguished: police officer use of force.
The encounter between Jamal and the Hammond police was due to a traffic infraction for both front seat occupants not having their seatbelts on. Police officers gave Jamal numerous opportunities to comply with their verbal commands. Currently this incident is under investigation to determine whether the police officers were justified. In my opinion, these officers utilized the amount of force necessary to gain compliance. In my experience, one of the most difficult situations to deal with as a police officer is a passive non-compliant individual.
Whereas looking at the South Carolina incident Levar Jones was compliant and non-aggressive. Once again this involved a traffic stop for a seatbelt violation. Levar was following the officer's commands to get his license when he was shot. Currently Sean Groubert, the State Trooper involved was fired and facing a charge of assault and battery of a high and aggravated nature. This felony carries up to 20 years in prison. In my opinion this officer utilized unnecessary, unreasonable and excessive force. Levar did make an overt movement after being instructed to get his identification. In my knowledge, training and experience Levar's actions did not rise to the level of being shot.
When an officer is sued for using excessive force what will courts look at? In Graham v. Connor the US Supreme Court held that all alleged excessive force cases would be analyzed on a case-by-case basis using the Fourth Amendment's "objective reasonableness" standard rather than under a due standard process. The Supreme Court set forth three factors to consider:
1. The totality of the circumstances
2. Force should be judged by a reasonable standard
3. Whether a reasonable police officer with the same training and experience faced with a similar situation would do the same.
Courts take into consideration that all law enforcement agencies have a policy that if a specific situation arises where the use of deadly force is authorized that the police officer may shoot to stop the threat. However, the officers should not discharge their weapons to kill but rather stop and incapacitate the individual from completing a potentially deadly act.
Courts also recognize that officers aim for maximum effectiveness in stopping the suspect while creating minimal danger to innocent bystanders. Moreover, once the individual has been stopped the officer should render appropriate first aid when possible.
What measures are in place once a police officer is involved in a use of force incident? The officer is typically placed on paid administrative leave pending the outcome of an investigation. This investigation is conducted internally and sometimes externally, or both. Once the investigation is complete the case is typically presented to a grand jury to determines whether to indict the officer or not. This is the checks and balance system used to ensure the officer did not use excessive force. Once cleared the officer is placed back into active service, if not cleared then disciplinary proceedings will commence. These proceedings typically involve the officer's termination or resignation from the department.
The public must understand that police officers make split second decisions but they are people and make mistakes. Measures are already in place to ensure the force used was reasonable.
The common knee jerk reaction is to condemn the officer for his actions before seeing all the evidence. The criminal justice system is innocent until proven guilty. This includes police officers.
One way this growing epidemic could be eliminated is with better communication between police and citizens. For example by establishing a citizen review board comprised of members of the community, local judges, attorneys, police officers from other jurisdictions, etc. to give an informed decision on whether the force utilized was reasonable and to keep other citizens informed.
Another step might be to establish a citizen's police academy. These academies would give local citizens a chance to interact with the police officers and learn aspects of the job they may not understand until placed in the role of a police officer.
The overall goal is to bring police officers and the community together. Once citizens and police officers work to keep each other safe, both will better understand their roles. This produces a stronger, safer and more unified place to live.
John Mario Acosta Jr. is currently a second year law student at Valparaiso University Law School. He previously served in the Military in a variety of positions including a K-9 unit, twelve years in the police force before completing his undergraduate and masters degrees in Criminal Justice from Troy University in Alabama. His current e-mail address is firstname.lastname@example.com.
Suggested citation: John Acosta, Evaluating and Understanding Police Use of Force, JURIST - Student Commentary, Jan. 17, 2015, http://jurist.org/student/2015/01/john-acosta-police-use-of-force.
In 2000, the US Department of State instituted the Victims of Trafficking and Violence Protection Act, an Act that was meant to combat human trafficking, with special attention given to slavery, the sex trade and involuntary servitude. Section 1593 of the Act, which is entitled "Mandatory Restitution," states that "the court shall order restitution for any offense" committed against anti-trafficking laws. It further states that victims shall be compensated the full amount of their losses. However, mandatory apparently no longer means mandatory.
The Human Trafficking Pro Bono Legal Center and the law firm of William Cutler Pickering Hale and Dorr LLP recently co-published and released a report concerning criminal restitution obtained in federal prosecutions of human traffickers. The report summarized the results of a review of federal criminal human trafficking indictments brought between 2009 and 2012. The results revealed that courts failed to provide legally required criminal restitution to human trafficking victims in almost two-thirds of the cases. Restitution was only awarded to sex and labor trafficking victims in thirty-six percent of the 186 cases resulting in guilty pleas or guilty verdicts. Though sex trafficking in the US is far more lucrative than other forms of domestic human trafficking, the report also noted that victims of other types of forced labor in the US are more likely to receive higher restitutions than sex trafficking victims.
But how is it possible that the courts can deny adequate compensation to sex trafficking victims—assuming that the courts award restitution at all—when the federal statute mandates compensation for the victims' losses?
According to the report, it is the federal prosecutors who hold the proverbial ball in their courts. A key determinant of whether and how much the defendants are ordered by the courts to pay restitution to any human trafficking victims depends on how hard the prosecutors fight for monetary compensation—if they fight for it at all. The report also notes that prosecutors failed to request any compensation in nearly half of the trafficking indictments that were brought in the federal criminal courts over the four year span. When compensation was requested, the average court order in sex trafficking cases only awarded to victims about $46,000, which was much lower than the $214,000 obtained in forced labor cases.
But why the vast difference? It is likely that the facts, which surrounded each situation, along with the illegality of the activities involved with the sex trafficking cases in particular, were factors that influenced the prosecutors' decisions—even when the victims were forced, or induced, in situations concerning child sex trafficking victims. Though restitution is mandatory and would help to deter and punish traffickers and make their victims whole, the disconnect between the illegal work and the statutory restitution requirement makes restitution requests difficult for prosecutors to defend and gives ample grounds upon which defense attorneys may object.
With the exception of eleven rural counties in Nevada, prostitution is illegal in the US. Thus, the defense attorney may say, if a person voluntarily enters into the sex industry, he or she is considered a criminal and the work is illegal. Whatever their losses, whether adults or children, whether they are forced, coerced, threatened or entered the industry willingly, defense attorneys often argue that sex workers should not be compensated for their ill-gotten gains.
But suppose that restitution is ordered by the courts. The defense attorney may return the proverbial ball back to the prosecutor with a couple of important questions in mind: how can the courts measure the value of illegal work and from where would the compensation come?
The physical, emotional and economic damages that human trafficking victims experience can be difficult to measure in terms of monetary awards. The value of sex services is also much greater than what one earns working for minimum wage, but again, the work is illegal. The Victims of Trafficking and Violence Protection Act of 2000 thus provides a formula to calculate the mandatory restitution and counter the effects of being trafficked. The formula is derived from the Fair Labor Standards Act (FLSA) and requires that awards in sex trafficking cases must include whichever is greater: the value of the work under the FLSA or the value to the defendant of the victim's forced or induced services. Section 1593 requires that the recovery must come from the defendant, so the defense would have to present a compelling reason to successfully argue against the order.
At this point in the debate of whether sex trafficking victims should be awarded back wages, as is guaranteed under the FLSA, the tax payer should not readily fear any out-of-pocket payments in order to make the sex worker whole again. Human trafficking in general has become the second fastest criminal industry—just behind drug trafficking—and according to the restitution report, sex trafficking is much more prevalent and profitable than other forms of trafficking. Because pimps and traffickers often force sex workers to give up their earnings, prosecutors should have a storehouse from which they may have money or property seized [PDF] and applied toward restitution to the victim. Stripping the defendant of their ill-gotten gains would be an effective way to help make the victims whole and give them an opportunity to leave the industry behind.
But why should the average citizen advocate to pay sex workers compensation for their losses? After all, their work is still illegal, and many citizens working in legitimate jobs experience wage violations and are due payment for their services.
Suppose a person is laid off and needs some quick income. Maybe the worker is a single mom who has bills to pay and kids to feed. Or the person is a college graduate or law student looking to pay off his or her loans. Maybe someone's adult child is offered an alluring work opportunity across the country and neglects to check out all of the details. What if the worker is you, or worse? What if it is your under-aged child who has been kidnapped and enslaved in the sex industry?
You are desperate to get your child back and make the trafficker pay. Maybe you are ready to quit your own work, but your trafficker forces you to keep working, threatens you or your family and demands all of your past and future income. Arresting and convicting the traffickers would free you and your child from the bonds of sexual slavery. The law states that the traffickers must pay, but the courts declare you and your child will not be compensated because the work was illegal. How will your bills get paid? How will you feed your kids? How will your child be made whole again? From where will your back pay come?
Remember, mandatory apparently no longer means mandatory.
Pauline Wein is a second year law student at Valparaiso University Law School in Indiana. She is currently working towards practicing criminal and international law with a focus on human trafficking and modern day slavery. Her current e-mail address is: firstname.lastname@example.com.
Suggested Citation: Pauline Wein, Back Pay in the Sex Industry: Why Sex Workers Deserve Their Pay, JURIST - Student Commentary, Jan. 14, 2015, http://jurist.org/student/2015/01/Pauline-Wein-sex-workers.php.
Numerous issues are playing out in the pre-trial hearing stage before Judge Col. James Pohl. Issues concerning violations of attorney-client privilege, an FBI investigation and female guards assigned to transport detainees continue to delay the 9/11 case. After a cost of $90,000 each way, to fly observers, media, linguists, prosecution and defense teams to Guantanamo Bay, the scheduled December hearings were canceled. Consistent estimates among defense counsel and other officials put the beginning of the actual trial well into 2018, some 17 years after the occurrence of the charged crimes. While the adage that "justice delayed is justice denied" may ring true for victims' families, torture will likely pose the greatest barrier to legitimate justice in the case of the 9/11 five.
Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak bin Attash, Ramzi bin al Shaibah, Ammar al-Baluchi and Mustafa Ahmed Adam al-Hawsawi have been charged with crimes relating to 9/11, for which they could be sentenced to death. The Executive Summary of the Senate Intelligence Committee's Torture Report details gruesome torture suffered by these defendants. Several were forced to stay awake for days, standing for most of the time, including Walid bin Attash, who has one leg and was hung from his wrists for hours. Alleged 9/11 mastermind Khalid Sheikh Mohammed was water boarded so many times he began to signal interrogators during the water boarding, showing he knew exactly how long the torture should last. Other deeply disturbing treatment included "rectal rehydration," suffered by both Mohammed and Mustafa al-Hawsawi, who now sits on a pillow in court due to "an anal fissure and symptomatic rectal prolapse" resulting from his past torture. Defense counsel James Harrington, representing Ramzi bin al Shaibah, strongly asserts that the Executive Summary of the Torture Report is just the "tip of the iceberg." Cheryl Bormann, representing Walid bin Attash, is barred by classification rules from revealing all that was done to her client during his years in secret prisons, but also suggests that the released summary of the Torture Report only scratches the surface.
These and other defense counsel have strongly questioned the legitimacy of the Military Commission from the beginning but remain involved to defend the principles of the US Constitution they believe should be provided, even to alleged 9/11 masterminds. The revelations of extensive torture further tests the legitimacy of the proceedings and provides the defense with further support for challenges they expect to go all the way to the Supreme Court.
The 9/11 five trial is poised for months or even years of legal battles over the disclosure, value and credibility of evidence received from defendants who were subject to years of unspeakable torture. Ultimately a panel of high-ranking military service members, the equivalent of a civilian jury, will have to decide whether guilt beyond a reasonable doubt and administration of the death penalty can be carried out in a case likely to rely to some extent on information obtained through torture.
Chief Prosecutor General Martins has stated he will put on a case against the 9/11 five without using any classified information. General Martins also asserts that no statements assessed to be involuntarily will be used, as prohibited by the Military Commissions Act of 2009. Martins also argues the release of information in the Senate's Torture Report will further accelerate the ability of the prosecution to turn over previously classified information to the defense regarding the Rendition, Detention and Interrogation (RDI) Program. It remains to be seen what evidence will be presented against each of the five defendants. Defense counsel argues that the government lacks independent and credibly obtained evidence and that a trial can simply not be fairly carried out against the tortured by the torturers.
The 9/11 trial is charting new ground. Nuremburg was about prosecuting torturers for crimes against humanity; not prosecuting the tortured. These new circumstances raise questions poised to reach the Supreme Court. What remedy is appropriate for torture carried out against the 9/11 five? Can evidence obtained during or following torture be admitted in the Military Commission system? As many call for indictments against those responsible for the governments torture program, the question of legitimate justice for 9/11 may be a more likely consequence for State-sanctioned torture.
A recent article by a 9/11 victim family member argued that the Senate Intelligence Committee's Torture Report inappropriately turned "the enemies into victims," betraying the true victims of 9/11. I would however assert that admitting and dealing with the fact that the alleged 9/11 conspirators were victims of State-sanctioned torture does not detract from the tragedy suffered by those on 9/11. In seeking justice for 9/11 through the current Military Commission, the questions of defining the defendants as victims of torture is likely less legally significant as the difficult legal questions surrounding the use of torture induced evidence.
In my opinion, our government undermined the "war on terror" the moment when it abandoned American values and justified the use of torture against our enemies. Now, faced with seeking justice for the families of the most appalling act of violence ever carried out on American soil, our nation is faced with the consequences of its actions. In the end, the trial against the 9/11 five may be less about guilt or innocence or life or death and more about the repulsive reality of the actions of our nation in its darkest hour.
B. Shaw Drake is a third-year student at Georgetown University Law Center. He has a B.A. in Latin American Studies and Romance Languages from The University of North Carolina at Chapel Hill. He also has an Advanced Graduate Certificate in Immigration Law from The City University of New York.
Suggested Citation: B. Shaw Drake, Unknown Impact of Torture on 9/11 Justice, JURIST - Student Commentary, Jan. 14, 2015, http://jurist.org/student/2015/01/shaw-drake-torture-impact.php.
On Tuesday, December 9th, district attorneys from San Francisco and Los Angeles filed a consumer protection lawsuit against Uber, a popular ridesharing company based in San Francisco and operating in over 250 cities in 50 countries. The complaint alleges that Uber misleads consumers about their safety, overcharges them and completely disregards California law.
"Uber has refused to comply with straightforward California laws that protect consumers from fraud and harm," San Francisco District Attorney George Gascon and Los Angeles County District Attorney Jackie Lacey stated. "These companies can be innovative in the way they deliver services without ignoring the laws that protect the public."
Uber's rival, Lyft, also based in San Francisco, settled with the city for $500,000 over similar accusations of making "false and misleading statements" to consumers over adequate background checks on their drivers. Lyft additionally agreed to stop all airport pickups until necessary permits are obtained and to submit its app to a state testing agency to assure their calculation of fares are proper.
Specifically, Gascon and Lacey state in their complaint that Uber allegedly portrays misleading statements regarding background checks the company obtains on their drivers, while also falsely charging a $1 "Safe Rides Fee" and a "fraudulent" $4 airport fee.
Uber's $1 "Safe Rides Fee" "supports continued efforts to ensure the safest possible platform for Uber riders and drivers, including a Federal, state and local background check process, regular motor vehicle checks, driver safety education, development of safety features in the app and more." Gascon and Lacey stated that Uber's rationalization for applying this $1 fee was because drivers underwent rigorous screening, beyond local requirements.
Uber fails to use fingerprinting technology to link prospective drivers to their criminal history. Instead, Uber relies primarily on potential drivers submitting their personal information online, then contracts with a private company, Hirease, to perform background checks. However, without fingerprinting, Gascon considers the background check "completely worthless" since there is no way of telling whether the information provided is definitively associated with the driver. The $1 "Safe Rides Fee" may not be justified since taxi drivers are required by law to participate in a more comprehensive background check, which includes fingerprinting.
If you are catching an Uber to or from the San Francisco International Airport, expect to be charged an additional $4 airport toll fee, even though drivers are not paying any money to the airport, according to Gascon.
Uber's policies also include no preliminary drug screening, so drivers are screened only after passengers have complained. Insurance coverage for Uber drivers is also $50,000 per injury, with a max of $100,000 per ride, if a driver has not started the trip when the accident occurs. In comparison, taxi drivers in Portland, Oregon are required to hold insurance that includes $500,000 per incident.
This consumer protection lawsuit seeks a court order blocking Uber from making false statements regarding background checks on their drivers, restitution to consumers for fees, as well as penalties of up to $2,500 for tens of thousands of violations, Gascon states. Uber could probably afford to settle with the city, like Lyft, since they recently were given a $41.2 billion valuation.
Eva Behrend, a spokesperson for Uber, told Business Insider, "Californians and California lawmakers all agree—Uber is an integral, safe and established part of the transportation ecosystem in the Golden state. Uber has met with the District Attorneys to address their concerns regarding airport operations, the Uber POOL product, background checks and operation of the app. We will continue to engage in discussions with the District Attorneys."
This lawsuit has followed after a string of unfortunate events for Uber recently. On Monday, December 8th, Uber was banned in New Delhi, after a driver allegedly raped a passenger. Uber could potentially be facing a nationwide ban in India. A former Uber driver is also facing a vehicular manslaughter charge after hitting a 6-year-old girl last New Year's Eve. Resistance of Uber has also been met with bans in the Netherlands, Thailand and Spain. Portland, Oregon is even suing the company.
Richard Torrenzano, chief executive of the Torrenzano Group, a reputation and high stakes issues management firm stated "there will be an enormous backlash by governments and a push by Uber's competitors in cities around the world who are more established and have been required to meet various government regulations."
In California, the Public Utilities Commission (CPUC) recently clarified requirements for ridesharing companies like Uber to operate, demanding them to hold more comprehensive insurance polices, as well as conducting more thorough background checks on potential drivers and safety inspections on vehicles. Additionally, the CPUC categorized Uber, Lyft and Sidecar (yet another ridesharing company) as a new category of transportation services called transportation network companies (TNCs). However, the definition of a TNC has led to confusion. According to the CPUC, a TNC is defined as "a company or organization operating in California that provides transportation services using an online-enabled platform to connect passengers with drivers using their personal vehicles." Government officials remain unimpressed by the notion that ridesharing companies are not operating as taxis, therefore getting to avoid regulation.
Thilo Koslowski, vice president and automotive practice leader at the technology analysis firm Garter, said the regulatory obstacles Uber is facing is no surprise, since the company "is still young." Koslowski noted Uber's expansion speed as a factor of the problems it is facing, but it is a "part of growing up." Koslowski warned that Uber should address more than better background checks for their drivers and advises technological solutions such as "security cameras or an SOS button in each car for passengers."
Taxicab companies are also battling ridesharing companies like Uber. Melwood Global and Interactive Strategies have been working together to represent the Taxicab, Limousine, & Paratransit Association on a campaign called "Who's Driving You?" which blasts safety lapses within the ridesharing industry. The campaign video entices viewers with four alleged myths about Uber: (1) that Uber is a technology company, (2) insurance or uberX services keeps people safe and covered, (3) Uber is a ridesharing company that doesn't need to follow taxi laws, (4) UberX doesn't need regulation [because] deregulation is a good thing. Colorado Governor John Hickenlooper seems to agree with the notion of deregulation for TNCs, stating: "rules designed to protect consumers should not burden businesses with unnecessary red tape or stifle competition by creating barriers to entry."
With all the backlash Uber is facing, is there a bright side? Yes. A new study found that taxi drivers are more prone to take risks and speed than Uber or Lyft drivers, as well as regular drivers. Zendrive, a driving analytics company, tested the driving habits of more than 1,000 San Francisco drivers and concluded that taxi drivers were 46% more likely to speed than rideshare drivers and 18% more likely to speed than average drivers. The study also concluded that taxi drivers were particularly bad at obeying traffic laws, since 60 percent of the taxi rides in the study included a safety violation (such as speeding or phone usage).
Ridesharing companies like Uber continue to remain more popular than traditional taxis as well. As for the safety pushback Uber is receiving, I prefer to take an Uber or Lyft over a taxicab any day. As soon as you open Uber's app and start the process of getting a ride, you can see the drivers that are closest to you via tiny moving cars on your smartphone's screen. After you choose a ride successfully, you can track the location of your ride using Uber's map, which even offers an estimated time of arrival. Uber also provides you with the make and model of the car picking you up and a picture and name of the driver. Once you get into your Uber, you are provided with another estimated time of arrival, this time to your destination.
Over light conversation, your Uber driver gets you where you need to go in a fast and efficient manner. Uber also has a feature where you can "share" your ride information with others through a text message, so another person can track your ride as well. This is especially beneficial when you are traveling to a friend's house, because they can track when you will arrive, what kind of car you are traveling in and who the driver is. It is like having a second set of eyes watching you. Watch for Uber's "surge" pricing during rush hour or other popular times, however, which can make your ride more expensive.
Bottom line: ridesharing companies like Uber, Lyft and Sidecar are innovators in the technology industry. Ridesharing companies provide convenience and better availability than taxis. It is easier to catch a ride with a ridesharing company than it is to hail a cab. Passengers in ridesharing cars also only pay with their credit card via the application, which is beneficial since credit cards have become the most user-friendly method of payment. An additional safety plus, at least for me, is that ridesharing companies track everything with GPS technology using smartphones. The companies know the identity of the driver, the identity of the passenger and the location of the final destination, which is more than I can say for a traditional taxicab. Getting into a car with a stranger is more reassuring when multiple people have the ability to track your every movement.
Danielle Ardner is a second-year honors student at Valparaiso University Law School in Indiana. She has a BA in Political Science from Mercyhurst University, with a focus on Applied Politics. Danielle has a passion and perseverance for writing.
Suggested citation:: Danielle Ardner, Safety of Uber Questioned in Lawsuit Filed, JURIST - Student Commentary, Jan. 10, 2015, http://jurist.org/dateline/2014/12/danielle-ardner-uber-safety.php.