Defense measure aims to improve contractors’ handling of sexual assault cases

The fiscal 2010 Defense appropriations measure President Obama signed into law on Monday includes a provision barring the Defense Department from entering into contracts with companies that restrict alleged sexual assault victims from taking legal action.

The amendment, introduced by Sen. Al Franken, D-Minn., stemmed from the experience of former KBR Inc. employee Jamie Leigh Jones, who was allegedly gang raped by co-workers while stationed in Iraq and then physically prevented from receiving medical treatment or reporting the crime. Upon returning home, Jones learned that her contract with the company banned her from taking the case to court, requiring instead that she enter into arbitration with the alleged rapists.

Support for the amendment was broad, but far from universal. The provision passed the Senate 68-30 in October, when the chamber was considering an initial version of the spending bill. Some Republican opponents argued that it was not Congress' place to interfere in private sector contracts.

"Congress should not be involved in writing or rewriting private contracts," said Sen. Jeff Sessions, R-Ala., during floor debate on the provision. "Instead of eliminating arbitration we should look into how to utilize arbitration more in these kinds of disputes." Sessions called the amendment a "political attack directed at Halliburton," KBR's former parent company.

The Obama administration and the Defense Department initially opposed the amendment, although the White House insisted it supported the provision's intent. The Pentagon's primary concern, according to a letter Defense officials sent to lawmakers before the Senate's vote, was enforcement.

"The Department of Defense, the prime contractor, and higher tier subcontractors may not be in a position to know about such things," the letter stated. "Enforcement would be problematic, especially in cases where privity of contract does not exist between parties within the supply chain that supports a contract."

The letter stated that if the Senate deemed these types of contract clauses to be unacceptable, it might be more effective to prohibit them in any business transaction within the jurisdiction of the United States. Negotiations between the department and Capitol Hill eventually resulted in a number of changes, including an agreement that the restriction would apply only to companies with government contracts valued at more than $1 million and that it would contain a waiver for national security concerns.

The provision, now law, does not require companies to change existing employment contracts, but will bar the government from entering into future pacts with those firms if they do not modify employment clauses. When the provision passed the Senate, Franken said it "narrowly targets the most egregious violations."

"Many [defense contracts] are administered abroad, where women are the most vulnerable and least likely to have support resources," Franken said in a statement. "The amendment will apply to many contractors that have already demonstrated their incompetence in efficiently carrying out defense contracts, and have further demonstrated their unwillingness and their inability to protect women from sexual assault."