Silencing the survivors: How the Brock Turner case reflects the failures of our justice system

Silencing the survivors: How the Brock Turner case reflects the failures of our justice system

Woman1By Lisa Mak

Like many others, I was outraged by the outcome of Brock Turner’s case for his rape of an unconscious, intoxicated woman behind a dumpster.  This woman was brave enough to go through the process of a 16-month criminal case.  She wrote an extremely powerful and heartbreaking statement that she read in court when addressing how Turner’s assault has forever changed her life.  Prosecutors had sought a six-year prison sentence for Turner’s crime.  Yet Judge Aaron Persky only imposed six months of prison with probation, stating that a longer sentence “would have a severe impact” on Turner and that Turner “will not be a danger to others.”

Unfortunately, this painfully skewed result, the biased way the case was portrayed, and the outrageous statements from Turner’s family and friends defending his actions, are all too familiar features of a system that often does not treat rape and assault for what they are – violent, heinous crimes that violate basic human dignity.  The events and reactions in the Turner case remind me of cases I’ve litigated where employees were sexually harassed, assaulted, or raped in the workplace.

It seems like the same story every time.

The victim is blamed and doubted.  Questions may be asked about whether she was somehow responsible for what happened.  Were you drunk at the company party?  Why did you enter his hotel room to talk about work?  Have you ever sent a risqué email at work?  Did you date that co-worker? Why can’t you remember all the details?  Are you sure the relationship wasn’t consensual?  Investigations into workplace sexual harassment complaints may not happen, or when they do, they may be conducted in a way that is slanted against the victim.  Given the difficulty of coming forward, it is unsurprising that many sexual harassment cases go unreported.

The perpetrator is protected.  He is given the benefit of the doubt.  He may receive little to no discipline for his misconduct.  The victim is advised that everyone is “moving on” from the situation.  To add insult to injury, often employees who complain about sexual harassment will be fired in retaliation.  For example, in her lawsuit against Tinder in 2014, co-founder Whitney Wolfe alleged that she was forced out of the company after her complaints of discrimination and harassment.

There is often a mistaken focus on the impact on the perpetrator’s career and reputation, as opposed to the physical and psychological impact on the victim.  When former Dean of Berkeley Law School Sujit Choudhry was accused of sexually harassing his executive assistant, university officials were allegedly reluctant to terminate him for fear of ruining his career.  He was never in fact terminated, and resigned after a lawsuit was filed against him earlier this year.

Similarly, when Turner’s father pleaded for leniency for his son, he ignorantly argued: “[Turner’s] life will never be the one that he dreamed about and worked so hard to achieve.  That is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”  This, compared with the life of the woman Turner raped, who explained: “My independence, natural joy, gentleness, and steady lifestyle I had been enjoying became distorted beyond recognition.  I became closed off, angry, self deprecating, tired, irritable, empty … You bought me a ticket to a planet where I lived by myself.”  Yet Judge Persky remained concerned about the “severe impact” a longer prison sentence would have on Turner, the convicted criminal.

Whether sexual assault happens at work, at school, in a home, or anywhere else, the same infuriating narratives keep surfacing – blaming the victim, doubting the crimes, and protecting the perpetrator.  Language is used to downplay the severity of the attacks.  Turner’s friend, Leslie Rasmussen, submitted an equally outrageous letter of support for him for trial, writing: “[W]here do we draw the line and stop worrying about being politically correct every second of the day and see that rape on campuses isn’t always because people are rapists.”

This isn’t about being politically correct.  This isn’t about alcohol or promiscuity or the tarnished futures of privileged individuals who chose to violate the rights of others.

This is about calling out sexual harassment, assault, and rape for what it is.  This is about respecting women and human beings and common decency.  Cases like Brock Turner, along with the many cases of workplace sexual harassment we see, underscore the need to focus on the consequences caused by the perpetrator and not on rationalizations for the violent conduct.  When survivors of assault and harassment are able to come forward and speak their truth, their courage should always be met with an outcry of support and a fair chance at justice.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

We need “peace” officers! It’s time for crisis intervention training

We need

?????????????????????????????????????????????????????????????????????????????????In a recent article published on the popular online magazine, Truthout, CELA VOICE blogger and police misconduct lawyer, Jim DeSimone, explains why police officers need to be properly trained in order to avoid unnecessary use of force against individuals, especially those who have disabilities.  In most jobs and occupations, safety training is provided to avoid injury to employees and customers.  When employers intentionally fail to provide proper safety policies and training to avoid injury, or ignore obvious accommodations to an individual employee or customer, the companies or government entities can be held liable for substantial sums to compensate the injured party.  Jim shows how inadequate police training has led to unnecessary death or injury and the resulting costs to the families involved as well as taxpayers.

Read the full article here:  “We Need “Peace” Officers! It’s Time for Crisis Intervention Training(more…)

U.S. lags behind western democracies in enacting anti-workplace bullying laws despite growing problem 2

U.S. lags behind western democracies in enacting anti-workplace bullying laws despite growing problem

dreamstime_xs_29765084By Supreeta Sampath

According to the National Bullying Institute, one-third of Americans are bullied at work, and workplace bullying is on the rise.  Recently the issue of bullying made national headlines when Miami Dolphins offensive tackle Jonathan Martin, accused lineman Richie Incognito of physical and verbal abusive behavior.  The absence of state or federal legislation to address this troubling trend sends bullies the message that they can get away with such behavior as yelling, screaming, humiliating, and sabotaging an employee’s career.  The legal void also signals to employers that they can turn a blind eye to bullying without fear of legal repercussions.

Compared to other western democracies, including Britain, Canada, France and Australia (which have all enacted anti-bullying legislation) the United States is in the dark ages on this important mental health issue.  But at the state level, there are signs that this may be changing.

Suffolk University Law Professor David Yamada has drafted model anti-bullying legislation, known as The Healthy Workplace Bill.  The Healthy Workplace Campaign defines workplace bullying as “repeated, health-harming mistreatment” that involves verbal abuse, offensive conduct that is threatening, humiliating, intimidating or work sabotage.

Since 2003, anti-bullying legislation has been introduced in 25 states (including California). While none has been enacted into law, there are currently 11 states that have bills under active consideration.

This kind of legislation will undoubtedly ignite the business lobby with their well-worn opposition arguments.  Employer groups will continue to argue that anti-bullying legislation will open up the floodgates of litigation and clog our already overburdened courts because “overly sensitive” employees will run to file a lawsuit every time they have a bad day at work.

But this focus on the frivolous is a straw argument that trivializes the real cost of bullying to workers and businesses alike.  The concern about legislating workplace civility can be addressed by careful drafting.  Rather than fighting workplace bullying laws, employer lobby groups should put their energies into crafting a law that will prohibit abusive or humiliating treatment that no decent employer would sanction, while leaving supervisors free to constructively manage and discipline employees.

It would be nice if internal policies and company grievance procedures had put an end to the harm of workplace bullying.  But that has not happened.  What we know from past experience is that sometimes it takes a change in law to change behavior.

Before the passage of laws like Title VII and California’s Fair Employment and Housing Act, it was legally permissible to harass and discriminate against employees on the basis of their race, color, gender, sexual orientation, disability, age, and other now protected categories.  Once these laws were in place, U.S. companies began holding their managers and employees accountable to  eliminate discrimination and sexual harassment in the workplace.

The good news is that, according to a survey by one human resources professional organization, 56% of U.S. companies already have some sort of anti-bullying policy.  Drawing on models from employers themselves, we should be able to frame a law that would eliminate frivolous claims by definition by requiring claimants to show not only of out-of-bounds conduct, but also documented harm.  While there may be some who still try to file unworthy suits, careful crafting of legislation will ensure that their suits are tossed out.  But throwing the baby away with the bath water is not the solution to a growing national problem.  It’s time for California and other states in the union to get serious about enacting anti-workplace bullying legislation.

Supreeta Sampath

About Supreeta Sampath

Supreeta Sampath is the founder of The Sampath Law Firm located in San Francisco, California. For over a decade, her legal career has been dedicated to serving the needs of those who have been denied justice. Ms. Sampath has extensive experience representing workers in employment discrimination cases on account of race, national origin, religion, gender, disability, age, sexual harassment, retaliation as well as cases involving labor code violations. From 2011-2014 she has been named a Rising Star in the field of Labor and Employment by Super Lawyers Magazine.

Rape in the fields goes unpunished 1

Rape in the fields goes unpunished
Raspberry Workers in Oxnard

© Copyright CRLA, Inc.

By Michael Marsh

Recent Congressional hearings have focused much-needed attention on the problem of sexual assault against women in the U.S. armed forces. San Diegans are demanding that their mayor resign because of sexual harassment allegations. But where is the public outrage against sexual harassment and assault suffered by women who work in our fields?

To be a female farmworker today is to face the sort of sexual harassment and assault that secretaries and other female office workers faced in the 1950s and ’60s. Supervisors create and maintain hostile work environments. Sexual banter, inappropriate touching, and hostility toward women are commonplace.

As an attorney for farmworkers, I am frustrated by how little progress we have made in resolving this problem. Years ago, one of my first clients was a farmworker who suffered six months of daily comments by her supervisor about her body. On numerous occasions, he attempted to coerce her into having sex with him by threatening to fire her or have her deported. She lived in constant fear. Finally, finding her alone at the edge of a field one evening, her supervisor raped her.

Ironically, the worker, whom I’ll call Guadalupe, did not come to my office to report the sexual assault. She came with a family law question. Did she have to list the “father’s” name on the birth certificate? The assault had resulted in a pregnancy. Not knowing any of this, I congratulated her on the pregnancy. Only then did she break down in tears and explain that her supervisor had raped her. When I asked her why she had not reported the rape to me earlier, she said she was embarrassed and, in any case, did not think there was anything that could be done about it.

Little has changed. According to one report, hundreds, if not thousands, of farmworker women have been compelled to have sex with their supervisors to get or keep jobs, and many others suffer a constant barrage of sexual comments, groping, and propositions for sex. Another survey found that 90 percent of farmworker women reported that sexual harassment is a major problem in the workplace. A 2012 report by Human Rights Watch states that in most instances the perpetrators of such harassment are supervisors, foremen, and farm labor contractors.

Last year, I settled the case of a farmworker who alleged she was raped by her supervisor in a truck at the side of a field at 5 a.m. before the rest of the crew had arrived. The worker, whom I’ll call Maria, had accepted a ride from him because the company van was full.

Farmworker women endure many difficulties to support their families, and threats by farmers to call immigration authorities on some complaining workers are implicit and explicit. The power imbalance is extreme. Workers understand that supervisors have absolute power to discipline and fire workers. And farmworker women often lack information and support to challenge bad behavior.

The root of the problem is that our society has dehumanized farmworkers. When city dwellers speed by farmworkers on the highways of California, they do not see people working upright, standing on two feet, eyes focused on the horizon. They see bundles packaged against the sun and wind, hunched over as if on all fours, with eyes focused toward the ground. In short, they see animals, not human beings.

Focus groups of California registered voters organized by the Rural Community Assistance Corporation indicate that citizens understand that living and working conditions for farmworkers are extremely substandard. But these same citizens justify the conditions, arguing that farmworkers chose their own lot or, conversely, that these conditions must be an improvement from conditions in Mexico. In any case, so many farmworkers are “illegals,” so what should they expect?

We need to change society’s view of farmworkers. Schoolchildren should learn about the contributions farmworkers make to our economy and society and the problems farmworkers face. An effective media campaign—funded by the agricultural industry and the government—should be launched that educates the public and humanizes farmworkers in the public eye. And while some news organizations—such as the Center for Investigative Reporting, Univision, and PBS/Frontline—have done commendable work on the sexual harassment of farmworker women, more needs to be reported.

Laws must also be enforced.

Protection requires speed, but, right now in California, the federal Equal Employment Opportunity Commission (EEOC) takes a year or more to assign an investigator to a case and another one to three years to complete an investigation. During those long waits for justice, witnesses disappear, especially in a migrant labor market, making difficult cases nearly impossible to prove. Harassers become emboldened.

California employers are required to train supervisors about sexual harassment every two years and to give all employees information about sexual harassment every year. But many agricultural employers fail to provide any meaningful training whatsoever. In Guadalupe’s case, her employer gave workers a sexual harassment information sheet that was so poorly translated into Spanish that it stated “if you report sexual harassment to your supervisor, you will be retaliated against.”

Maria reported her attacker to the local sheriff, but most women do not report the assaults to authorities. Even when they do, it can lead nowhere. Maria’s attacker was interviewed by deputies but never charged with a crime. The silver lining was that Maria’s victimization and her cooperation with law enforcement formed the basis for her successful application for a “U” visa, which is granted by U.S. Citizenship and Immigration Services to victims of certain violent crimes who collaborate with authorities to investigate or prosecute those crimes. As knowledge of “U” visas becomes more widespread among the farmworker community, I expect that more farmworker women will come forward to report these crimes.

Our office works closely with a rape crisis organization, medical personnel, and local law enforcement. But in many areas, rape crisis organizations are non-existent or underfunded. Lawyers win settlements for victims but do little to address the underlying causes of the problem. Rural law enforcement officers are not as empathetic to the complaints of assault victims as many of their urban counterparts. All this must change.

Farmworker women may not wear our country’s uniform or carry a weapon into battle, but the work they perform is just as important. They deserve equal protection against sexual harassment and assault.

This article originally appeared at www.zocalopublicsquare.org.  

Michael Marsh

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

“Rape in the Fields” documentary chronicles sexual violence against women farmworkers

By Michael Marsh

I was born and raised just a few miles north of our country’s border with Mexico. As a teenager I often wondered what my life would have been like had I been born just a few miles south, which led me to become an attorney who assists low wage, Spanish-speaking employees in California.

Through my work I have learned firsthand that sexual harassment and assault against farmworker women, documented in “Cultivating Fear,” a 2012 Human Rights Watch report,  transcends borders. Every week approximately two women come to our small office in Salinas to complain about sexual harassment. This season we’ve already had three farmworker women report that they were sexually assaulted by their supervisors at work.

The shocking prevalence of sexual abuse against farmworkers is the subject of a new Frontline documentary, “Rape in the Fields.”  It  airs Tuesday June 25 on PBS and June 29 on Univision.

Michael Marsh

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

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