Martina E. Vandenberg is a pro bono human rights attorney and president of the Human Trafficking Pro Bono Legal Center. She has brought cases against diplomats for domestic worker abuse in the United States and provides technical assistance to pro bono attorneys representing domestic workers, including the lawyers for the domestic worker in Devyani Khobragade’s case.
The diplomatic standoff over the recent arrest of an Indian consular official accused of visa fraud, false statements and exploitation of a domestic worker has several relevant precedents.
In June 2011, an Italian consular officer, Giuseppe Penzato, was arrested in San Francisco. Federal prosecutors charged Penzato and his wife with exploiting a domestic worker in their home. This year, both pleaded guilty to conspiring to possess an illegal identification document; they paid $13,000 in back wages to the domestic worker and quietly left the United States.
In November 2011, a Taiwanese envoy based in Kansas City, Mo., pleaded guilty to fraud in foreign labor contracting. Federal prosecutors held Hsien-Hsien Liu in custody for 78 days after her arrest. She paid $80,044 in criminal restitution to two domestic workers from the Philippines who had accused her of human trafficking. A federal judge ordered her deported after she paid the restitution and an $11,040 fine.
In November 2012, Mauritius’s ambassador to the United States, Somduth Soborun, pleaded guilty in federal district court in New Jersey to failing to pay the minimum-wage rate to his domestic worker. He paid a $5,000 fine as well as $24,153 in back wages to the worker.
These cases illustrate that diplomats can be held criminally accountable for exploiting domestic workers. In the first two instances, the individuals enjoyed consular immunity only for their official acts. In the third, the government of Mauritius waived its diplomat’s immunity, allowing the prosecution to proceed.
These cases all marched through the U.S. legal process without major fanfare. Italy, Taiwan and Mauritius did not try to make international incidents over the charges. They did not remove security barriers protecting U.S. embassies or strip U.S. diplomats of identity documents.
So why the fracas in New Delhi?
Over the past few years, the Indian government has established a contemptible pattern of defending consular officials accused of labor exploitation and human trafficking in the United States. Lost in the uproar over the Dec. 12 arrest of Devyani Khobragade is the fact that this is the third exploitation case brought against Indian officials in New York since 2010.
The first two cases, filed as federal civil complaints, accused high-ranking Indian consular officials of human trafficking for forced labor. Both cases were brought by domestic workers with assistance from pro bono attorneys. One ended in a $1.4 million judgment against the diplomat in 2012. Public filings indicate that the second case ended in 2012 with a confidential settlement. The Indian government responded to the first lawsuit by joining the defendant to file a suit against the domestic worker and all of her pro bono attorneys in an Indian court seeking to halt the U.S. case.
Now India is seeking to shield Khobragade from criminal prosecution, arguing that she possessed full diplomatic immunity as an adviser to India’s permanent mission to the United Nations. Even if Khobragade had such immunity — and India’s recent effort to reassign Khobragade to its permanent U.N. mission underscores that she did not — its use under these circumstances would pervert the intention of the 1946 Convention on Privileges and Immunities of the United Nations. As a consular official, Khobragade had a limited form of immunity covering her official acts, not her private affairs.
Secretary of State John Kerry has expressed his “regret” over the circumstances of Khobragade’s arrest, which reportedly included a strip search by a female U.S. marshal. But Kerry and his predecessor, Hillary Clinton, have publicly denounced trafficking and the exploitation of domestic workers by diplomats. As recently as November, the U.S. mission to the United Nations held a meeting with the entire diplomatic corps in New York to explain U.S. labor law and proper treatment of domestic workers.
Instead of acquiescing to the Indian government’s efforts to thwart justice, the U.S. government should deny the request to reaccredit Khobragade to the United Nations. The State Department should refuse to accord her full diplomatic immunity, rather than the more limited consular immunity she possessed at the time of her arrest. The federal criminal prosecution must be allowed to continue without regard to political expediency; anything else would send precisely the wrong message about the rule of law in the United States.
U.S. officials should also suspend India from the visa program that permits diplomats to bring domestic workers to the United States; suspension is required under the 2008 Trafficking Victims Protection Reauthorization Act if there is at least one credible case of exploitation or trafficking and a foreign government has tolerated the abuse.
At its heart, this incident is about a domestic worker alleging fraud, underpayment of wages and other serious violations of U.S. law. Khobragade’s counsel insists that she is innocent. As in previous prosecutions of foreign officials, the evidence — not misappropriated diplomatic immunity — should decide the case.