Diplomatic Immunity at Issue in Domestic-Worker Abuse Cases
Sunday, September 20, 2009
When Lauro L. Baja Jr. returned to his native Philippines in 2007, he had just finished a four-year stint as ambassador to the United Nations that included two terms as president of the Security Council. A storied diplomatic career that began in 1967 culminated with the Philippine president conferring upon him the highest award for foreign service. Then a three-month episode from his U.N. days returned to haunt him.
He was sued by Marichu Suarez Baoanan, who had worked as a maid in New York City for Baja and his wife, Norma Castro Baja.
Baoanan, 40, said the Bajas brought her to the United States in 2006 promising to find her work as a nurse. Instead, Baoanan said, she was forced to endure 126-hour workweeks with no pay, performing household chores and caring for the couple's grandchild. Baja denied the charges, saying Baoanan was compensated. He also invoked diplomatic immunity -- a right that usually halts such cases in their tracks.
But in June, a federal judge in Manhattan ruled that the former U.N. ambassador could not claim immunity because Baoanan's "duties benefited the Baja family's personal household needs, and are unrelated to Baja's diplomatic functions."
Baoanan's attorney, Ivy Suriyopas, called the ruling "an important shift" in cases involving diplomatic immunity.
"Only one other case involving diplomatic immunity and domestic workers was able to progress this far," Suriyopas said. Baja's attorney, Salvador E. Tuy, called the charges "untrue." The trial is ongoing.
The case highlights what advocates call a longtime pattern of trafficking and exploitation of domestic workers by foreign diplomats in the United States.
"Unfortunately, cases involving diplomatic employers represent a disproportionate amount of the domestic-worker abuse cases we see," said Suzanne Tomatore, director of the Immigrant Women and Children Project at the New York City Bar Justice Center.
A July 2008 Government Accountability Office report identified 42 cases of abuse by diplomats over an eight-year period but emphasized that the actual number was probably higher. "Nobody expected a number this big," said Thomas Melito, GAO director of the section on international affairs and trade. Under the Vienna Conventions, diplomatic immunity provides a shield from prosecution that is "almost absolute," said George Washington University law professor Sean Murphy, who spent 11 years in the State Department's Office of the Legal Adviser.
Workers have historically had little success with complaints of abuse against diplomats. For example, Mildrate Yancho Nchang said she toiled for three years without pay or a day off and then was hospitalized after being beaten by a Cameroonian diplomat's wife. She sued in federal court in Maryland, but the case was dismissed in 2006 when the diplomat asserted immunity.
Advocates and lawyers say that the U.S. government does little to protect workers or hold foreign diplomats accountable. Local law enforcement is often the first to learn of allegations. However, with a diplomat involved, local authorities must wait for guidance from the Justice Department.
"Federal law enforcement doesn't have the capacity to take on every abuse allegation, and local law enforcement isn't always equipped to do so. Victims of abuse and trafficking find themselves in the gap between," Tomatore said.
Justice Department officials must confer with the State Department, the gatekeeper for all complaints against diplomats. As State Department officials weigh the implications of criminal or civil proceedings, a case can take months to resolve, the GAO said.
Justice Department spokesman Alejandro Miyar said the GAO may have overstated the delays.
Although Justice declined to say how many probes it had undertaken, the GAO report cited 19 trafficking investigations involving foreign diplomats from 2005 to 2008. No case brought an indictment.
State Department officials say they must balance protocol and worker protections.
Recently, a draft copy of State's 2008 report on human trafficking cited high-profile cases involving diplomats from Kuwait and Tanzania. The reference to the two countries was cut from the final report, according to sources with knowledge of the draft report who spoke on the condition of anonymity because they were not authorized to speak on the record.
Luis CdeBaca, the ambassador at large on trafficking issues, said that his office takes abuse reports seriously but that the issue presents unique challenges.
"Immunity should not mean impunity to enslave domestic servants on U.S. soil, and we will continue to work to ensure that these domestic workers are accorded full rights and human dignity in our country," CdeBaca said.
But State has yet to deny or revoke a diplomatic visa or implement sanctions as a result of an abuse allegation.
There are signs of progress. In February 2008, State sent pamphlets to all overseas posts to inform incoming A-3/G-5 visa holders of their rights. Consular officials must verify that each applicant has understood the information. The pamphlet is available only in English.
In December, Congress reauthorized the Trafficking Victims Protection Act, with safeguards for visa holders. The law now requires State to assume greater oversight of complaints and cooperate more closely with Justice.
But the State Department has been slow to implement the policy changes required under the law.