H.R. 4445

Floor Speech

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Mr. DURBIN. Mr. President, this body is at its best when we come together to support our most vulnerable neighbors. Today, and in the coming days, we have a chance to do just that.

The Senate will be considering two pieces of legislation that will provide vital support to survivors of domestic violence and sexual assault: the VAWA Reauthorization Act of 2022 and the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act.

Both of these bills are the product of months of bipartisan negotiations. And they will ensure that survivors of domestic violence and sexual assault can reach for a lifeline in a moment of crisis and seek justice against their abusers.

At a time when nearly one in three women living today say they have experienced some form of physical or sexual violence, this Senate must be united in standing with survivors. With these two pieces of legislation, we can prove to them and every survivor in America that they are not alone.

Every day, domestic violence hotlines throughout the country receive roughly 20,000 calls from victims or people who are at risk of intimate partner violence. That number is a sobering reminder that the crisis of sexual and domestic violence touches every community in America.

We need to ensure that every victim, whether they live in a Native community in rural Alaska or in a city like Chicago or Las Vegas, can reach for help the moment they need it.

Mr. President, yesterday, I joined Senator Feinstein, Senator Ernst, Senator Murkowski--and 16 of our Democratic and Republican colleagues-- in introducing a reauthorization of the Violence Against Women Act-- also known as VAWA.

Since VAWA was first enacted nearly 30 years ago, it has transformed the way we address domestic and sexual violence in America. And it has helped save the lives of countless survivors.

Let me tell you about one of them. Her name is Meaghan. Years ago, Meaghan was brutally assaulted by her ex-husband. The beating was so violent that she is still suffering from hearing loss to this day. While Meaghan was being attacked, her 2-and-half-year-old son, who is on the autism spectrum, ran over to help her. As he was running, the ex-husband picked up the child and threw him into a closet. Meaghan says the experience was so traumatizing that her son didn't speak for a full year after the attack.

When Meaghan finally broke free from her ex-husband, she packed her bags, buckled her two children into the car, and fled for her life. And today, her ex-husband is on the run with six open warrants for his arrest. Meaghan says she and her kids are constantly looking over their shoulders. As Meaghan and her family have begun to heal from this horrifying ordeal, she says they have found much-needed compassion and support in the detectives and social workers who came to their aid.

She wrote that service providers ``were patient with me and didn't push me, [they] only showed me they cared, and most of all didn't give up . . . with their support and guidance I found the light at the end of the tunnel and I fought my way out of the darkness that my ex-husband had cast . . . on my life.''

Meaghan's story is just one example of the world of difference VAWA has made for victims of sexual and domestic violence. In her case, VAWA provided critical resources to law enforcement and social service agencies that helped her and her family escape a perilous situation.

And with the bill we introduced yesterday to update and modernize VAWA, we can build on that lifesaving legacy. To be sure, this legislation is a compromise. It does not include every provision I would like--nor every provision that Senators Feinstein, Ernst, or Murkowski would like.

But it will deliver critical assistance to survivors across the country--including funding for legal services, trauma-informed law enforcement responses, and access to services for survivors who require culturally specific services, like LGBTQ survivors, survivors living with disabilities, survivors in rural areas, and members of other underserved communities.

We have crafted a proposal that will save lives--and has a pathway to passage in the Senate.

In fact, the broad, bipartisan coalition in support of this effort was on full display yesterday, when we announced this legislation alongside survivors and advocates, district attorneys, the Baltimore police commissioner, and actor and advocate Angelina Jolie.

Let me just say: If Thena, the goddess of war, can't convince 60 Senators to support this bill, well, I certainly have my work cut out as whip.

It has been 9 years since we last reauthorized VAWA and 4 years since that reauthorization expired. Survivors can't wait any longer. Let's send this law to President Biden's desk as soon as possible.

Mr. President, there is more we can do to support survivors of sexual misconduct. These acts of abuse and harassment leave behind scars, both visible and invisible, that can last a lifetime. Every survivor deserves the right to seek justice on their own terms.

That is why, this morning, the Senate will vote to enact the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. It was introduced in the House by my friend and Illinois colleague Representative Cheri Bustos and was passed in that Chamber on Monday with a resounding, bipartisan vote of 335-97.

The members of this Senate will join the House in passing this legislation on a bipartisan basis. This bill was introduced last year by Senators Gillibrand, Graham, and myself.

The premise of this legislation is simple: Survivors of sexual assault or harassment deserve their day in court. They should be able to choose whether to bring a case forward, instead of being forced into a secret arbitration proceeding where the deck is stacked against them.

It has become increasingly clear that forced arbitration clauses have enabled sexual abusers to escape scrutiny while their victims are compelled to stay silent. That is wrong.

Survivors deserve accountability. And that is exactly what this law will deliver.

Far too many survivors have been locked out of the court system because of a forced arbitration clause buried in the fine print of a contract they signed.

Consider the case of Lilly Silbert. She had a monthly membership to a therapeutic massage company, ``Massage Envy.'' And one day, she was sexually assaulted by a massage therapist.

Afterwards, Lilly tried to cancel her membership. To do so, she had to download the company's app and agree to its terms and conditions. But there was a detail buried deep within those terms and conditions: a forced arbitration clause. Lilly didn't even know it was there.

So when she tried to file a lawsuit against the company, they responded by trying to force her into a secret arbitration proceeding rather than let her get her day in court.

Even national figures have been trapped by forced arbitration clauses, people like Gretchen Carlson, a journalist and FOX News anchor who has been a champion in bringing this issue to light.

You may remember that Ms. Carlson brought a sexual harassment case against her former boss, Roger Ailes. He responded by invoking a forced arbitration clause in her employment agreement.

Forced arbitration clauses not only deny survivors their right to a day in court, they also conceal their allegations from public view. That is a green light for abusers to continue harming and harassing victims.

Hidden in fine print, these agreements silence survivors and enable abusers. We must end this injustice.

The bill we will pass today will ensure that every survivor has the choice to go to court. It will not change the law around what constitutes sexual harassment or assault.

But it will give survivors a choice of whether or not to bring a claim in court after the sexual assault or harassment claim has arisen, notwithstanding the presence of a forced arbitration clause.

There are a few other points about the bill that I want to emphasize.

The Senator from Iowa discussed her concerns about the bill being used to move claims that are ``unrelated'' to allegations of sexual harassment or sexual assault.

The bill is clear on this point. Under the bill, if the survivor so chooses, no predispute arbitration agreement shall be valid or enforceable ``with respect to a case which is filed under federal, tribal or state law and relates to the sexual assault dispute or the sexual harassment dispute.'' That resolves the Senator's concern.

I do want to clarify, though, that the bill text does not require any court to adopt new dismissal mechanisms for survivors' claims. Current State or Federal law governs how and when a case moves forward, and the bill does not create any new mechanism to allow for dismissal, nor does it require that victims have to prove a sexual assault or harassment claim before the rest of their related case can proceed in court.

Furthermore, the bill should not be interpreted to require that if a sexual assault or harassment claim is brought forward in conjunction with another related claim and the assault or harassment claim is later dismissed, the court must remand the other claim back to forced arbitration. That is not what the bill requires.

There is nothing in the bill directing courts to dismiss related claims and compel them to forced arbitration if a victim ultimately does not prevail on her sexual assault or harassment claim.

If there were such a requirement, it would have the undesirable effect of hiding corporate behavior such as retaliation and discrimination against women who report assaults and harassment.

Take the real-world example of Ms. Taylor Gilbert. In 2015, at age 22, she had just started working for a company called Indeed, Inc. While at a company training at a hotel, she was assaulted and raped by a company manager. Fearing she would lose her job, she did not initially report the assault to the company, but after repeated further sexual harassment from colleagues, she filed complaints with the company and told her supervisor what happened.

The company took no action, and Ms. Gilbert claimed she faced retaliation for having reported her complaints, including being bypassed for promotions and raises. Ms. Gilbert tried to bring a case in court against the manager who raped her and against the company--not just for the rape and harassment, but also for the retaliation that adversely affected her career path. But there was a forced arbitration clause in her employment contract, and her case was sent to forced arbitration.

Under this bill, that would change. Her case and all of its claims were related to the assault and harassment. Under this bill, the survivor would get the choice to bring that case in court, and the bill does not require dismissal of some claims in the case if other claims are not ultimately proven.

In Ms. Gilbert's case, it was essential that the company's conduct in enabling the abuse and harassment and also retaliating against her be brought to light, not covered up by being separated and forced into arbitration.

So to clarify, for cases which involve conduct that is related to a sexual harassment dispute or sexual assault dispute, survivors should be allowed to proceed with their full case in court regardless of which claims are ultimately proven. I am glad that is what this bill provides.

With this bill becoming law, survivors like Lilly Silbert, Gretchen Carlson, and Taylor Gilbert will finally have the right to make their case in court. And it will prevent abusers--along with those who enable them--from hiding behind a veil of secrecy.

I want to thank my colleague, Congresswoman Cheri Bustos, once again for her leadership on this proposal in the House. And I want to thank Senator Gillibrand for her leadership as well--and for all the work she does to support survivors.

Senator Graham has also been a vital partner in this effort; he held a hearing on this legislation when he served as chair of the Judiciary Committee. And he has been a great partner in getting it across the finish line.

Finally, I want to thank the members of our staffs who have worked day and night on this legislation--in particular: Alexandra Lowe-Server on Senator Gillibrand's staff, Katherine Nikas on Senator Graham's staff, and most of all Shanna Winters on my Judiciary Committee staff, who has worked tirelessly on this effort.

Today will be an historic day in the U.S. Senate. With the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, the rights of every survivor will be protected.

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