Labor & Employment Law Daily $3M verdict stands against US embassy worker for role in husband’s sex abuse of housekeeper
Friday, March 1, 2019

$3M verdict stands against US embassy worker for role in husband’s sex abuse of housekeeper

By Lorene D. Park, J.D.

Trafficking Victims Protection Act provisions violated by a U.S. embassy worker applied extraterritorially, so the court affirmed a jury verdict finding her liable for her role in the forced labor and sexual assault of a live-in housekeeper who was raped by the employee’s husband when they lived in Yemen.

Affirming $1 million in compensatory damages and $2 million in punitive damages against a U.S. embassy worker for her role in the victimization of a live-in housekeeper who the employee recruited and her now-deceased husband repeatedly raped (with the wife’s knowledge), the Fourth Circuit explained that the Trafficking Victims Protection Act (TVPA) provisions she violated, Sections 1589, 1590, and 1591, prohibiting forced labor and sex trafficking, applied to extraterritorial conduct. The court declined to address whether a fourth TVPA provision applied retroactively to her misconduct because the total award of damages would have been the same regardless (Roe v. Howard, February 25, 2019, King, R.).

The defendant worked for the U.S. State Department as a communications officer in Paris, where she met and married an Australian citizen who worked for the Australian embassy. Over the next decade, they held similar jobs around the world. In 2011, the husband retired and followed his wife as she continued her career. In 2005, she was assigned to the U.S. embassy in Yemen, where they lived in housing provided by the state department.

Wife befriends plaintiff. In September 2005, they met the plaintiff, who was then 20 years old and came from a poor family in Ethiopia. The wife befriended the young woman, who worked as a waitress. She took the plaintiff shopping, gave her personal advice, and suggested she come to work for the couple as a live-in. Eventually, the plaintiff agreed, and started working for the couple in 2007. She was told that her primary responsibility was to keep the husband happy.

Sexual assaults. Soon thereafter, the husband cornered the plaintiff in her room and raped her. The assaults continued throughout her employment, with the husband threatening her to stay silent. He retained her passport, said he could have her jailed, and threatened to tell her religiously conservative family of the assaults. The wife knew of the assaults, which the husband discussed with her, and had watched her husband touch the plaintiff intimately. Eventually, the plaintiff’s continued resistance and abject misery enraged the husband and he fired her in December 2007.

The TVPA. The TVPA was enacted in 2000 “to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.” Congressional findings repeatedly emphasized the transnational nature of trafficking and sexual exploitation, and the enforcement challenges posed by international criminal activity.

In 2003 amendments, Congress added a civil remedy at 18 U.S.C. § 1595(a), providing that victims may recover damages in federal court. The amendment also altered Section 1591, which prohibits trafficking of children by force, fraud, or coercion, to expressly apply to acts committed within the “territorial jurisdiction of the United States,” which is defined to include U.S. diplomatic installations and related premises. In 2006, the TVPA was expanded to reach the behavior of employees and contractors while working for the U.S. government. In 2008, the TVPA’s extraterritorial jurisdiction was again expanded to cover any offense by a U.S. national.

District court proceedings. In May 2016, the plaintiff sued the wife under TVPA Section 1595, alleging she violated multiple criminal provisions, including forced labor under Section 1589, forced labor trafficking under Section 1590, commercial sex trafficking under Section 1591, and conspiracy to engage in those offenses under Section 1594. Moving for summary judgment, the wife argued the TVPA did not apply extraterritorially to her conduct in 2007 and that the 2008 amendment did not apply retroactively. The motion was denied, and the jury awarded the plaintiff $1 million in compensatory damages and $2 million in punitive damages.

In a post-trial opinion, the district court addressed the wife’s argument about the extraterritorial reach of the TVPA. It ruled that, under the 2007 version of the TVPA, the presumption against extraterritoriality was rebutted under the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum, and the Fourth Circuit’s 2014 decision in Al Shimari v. CACI Premier Tech., Inc., because the wife’s conduct sufficiently “touche[d] and concern[ed] the United States.”

TVPA text supports extraterritorial reach. Affirming, the Fourth Circuit applied a somewhat different analysis to hold that the TVPA’s civil remedy provision applied to the wife’s conduct in Yemen. Specifically, the court relied on the Supreme Court’s 2016 decision in RJR Nabisco, Inc. v. European Community, and grounded its analysis in the text and structure of the relevant TVPA provisions. Under RJR Nabisco (which involved RICO), even absent an express statement of extraterritoriality, a statute may apply to foreign conduct if it clearly and directly incorporates a predicate offense that is itself extraterritorial.

Here the TVPA’s civil remedy provision incorporated predicate offenses that “plainly apply to at least some foreign conduct.” Specifically, Section 1595 permits a “victim of a violation of this chapter” (chapter 77) to bring a civil action, and many predicate offenses described by chapter 77 delineate extraterritorial application (e.g., prohibiting seizure of persons “on any foreign shore” with “intent to make that person a slave.”). Under RJR Nabisco, Congress’s incorporation of “extraterritorial predicates” into Section 1595 “gives a clear, affirmative indication” that Section 1595 provides a civil remedy for the foreign conduct that is prohibited by chapter 77.

The purpose, structure, history, and context of the TVPA all reinforced this conclusion, showing that Congress was clearly concerned with international rather than purely domestic matters.

Wife’s conduct covered by TVPA. The appeals court next explained that each of the wife’s offenses (the jury found she violated Sections 1589, 1590, 1591, and 1594) was a qualifying predicate offense for Section 1595 civil liability, as they were all found within chapter 77 of the code. The remaining question was whether those predicates applied extraterritorially to reach the wife’s foreign conduct in 2007. (The inclusion of some extraterritorial predicates does not mean that all statutory predicates extend to foreign conduct, noted the court.).

Section 1591, which prohibits sex trafficking, presented the simplest analysis because it was undisputed that the wife’s part in the plaintiff’s sexual abuse occurred entirely on U.S. embassy grounds and housing, which unquestionably fell within the “special maritime and territorial jurisdiction” of the U.S. Thus, she was liable, under Section 1595, for her violation of 1591.

Sections 1589 and 1590 of Title 18—prohibiting forced labor and forced labor trafficking—do not directly refer to foreign conduct, but under the 2005 amendment to the TVPA, those sections apply to extraterritorial acts committed by U.S. employees if the conduct would have constituted a chapter 77 offense within the U.S. or territorial jurisdiction of the U.S. This extraterritorial application was limited to persons employed abroad by the federal government, but the wife fell within that class, so the jury properly found her liable under Sections 1589 and 1590.

The Section 1594 analysis was different because the conspiracy provisions were part of the 2008 amendment. Though the wife’s misconduct happened before the amendment, the appeals court did not need to resolve whether 1594 applies retroactively because it was “reasonably certain” that the jury would have awarded the same amount of damages regardless. The jury calculated damages at $1 million for each of the four TVPA violations, but finding those duplicative, it awarded only $1 million in total damages. Thus, the jury would have awarded $1 million in compensatory damages for any one of the violations or any combination thereof.

In sum, the facts established at trial showed that the wife committed at least three predicate offenses that applied to her extraterritorial conduct toward Roe in 2007. Thus, pursuant to RJR Nabisco, Section 1595 authorized her civil liability and the jury’s award of damages was affirmed.

Evidentiary challenge. Also rejected was the wife’s argument that the lower court erred in denying her motion in limine to exclude testimony of Jane Doe, another live-in housekeeper who was also allegedly raped by the husband. The testimony was plainly admissible under Rule 404(b)’s exception to Rule 404(a)’s general prohibition of character evidence to prove an action in conformity therewith. Doe’s testimony described the wife’s efforts to recruit Doe to work as a live-in housekeeper, and her knowledge and facilitation of the husband’s repeated sexual assaults, which was highly probative evidence regarding a plan or pattern of behavior by the couple toward their live-in housekeepers; and the wife’s knowledge of the abuse.

Also, Rule 403 was no bar to the testimony because the probative value of the testimony was not outweighed by the risk of unfair prejudice. The appeals court noted that the lower court limited the scope of Doe’s testimony to avoid revealing the upsetting details of past assaults.

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