The perfect victim: Exploitation and threat of deportation

A retail custodian sexually assaulted by her boss fights back despite her immigration status

Because of this, sex crimes are uniquely hard to prosecute. In 2008, the same year that the county attorney declined to prosecute Zuniga's case, 159 criminal sexual conduct charges with an adult victim were referred to its office for prosecution. Of those, the office moved forward with 65 cases, or just 40 percent. For comparison, the rate for murder that year was 81 percent.

Zuniga's lawyers, Stratton and Gaulding, say that with rape cases, the amount of time it often takes victims to come forward not only makes it hard to prosecute criminally, but also plays into the public imagination.

"Studies show that there's a phenomenon where the lay public's perception is, 'Well, if that was happening to me, I would immediately report it,'" says Gaulding. "But if you're actually in that circumstance, it's not true. This is a rape myth that's out there, and it's part of what allows sexual harassment to continue."

Zuniga still wanted to take action, and her U visa application had been approved, which meant that it was possible for her to move forward in the legal system. So instead of criminal court, she took another route: On August 11, 2009, she filed a lawsuit against both Gonzalez and SMS.

On one sideof the dispute was Zuniga and her two lawyers, Stratton and Gaulding, who together run the nonprofit legal advocacy organization Gender Justice out of St. Paul. On the other was SMS and Gonzalez, both represented by fleets of employment lawyers from three large corporate firms.

Over the next four years, the two sides pulled out all the stops, producing a contentious legal paper trail nearly 700 documents long.

SMS argued that, "irrespective of the heinous nature of [Zuniga's] allegations," she didn't have a case: "She failed to complain or otherwise inform anyone of the alleged assaults or any untoward behavior by Marco Gonzalez during her employment at SMS."

The argument is based on a U.S. Supreme Court ruling that incentivizes employers to take steps that minimize the risks of sexual harassment. If the employer can prove that it has policies and practices in place to "prevent and correct" harassment, and that the employee "unreasonably" failed to use those policies, then the employer's off the hook for any liability.

But Zuniga countered that taking advantage of SMS's policy was impossible. SMS might have had the bare bones of a sexual harassment policy, but the company didn't create a practice that allowed employees to actually use it. While there was a section on sexual harassment in the employee handbook, that section didn't explain how employees could or should report abuses — or include a measure to protect employees who did find a way to alert the company.

While SMS did have a flyer with the company's human resources hotline, it was up to the facility manager at each site to post it. At least one photo of the offices at Ridgedale suggests that Gonzalez never did so.

As far as the term "sexual harassment" itself, Zuniga had never heard it. There was no harassment training for employees, and even for managers like Gonzalez, it was optional. No record shows that he ever received any.

Zuniga still did manage to alert the company of her complaint, but then, she argued, SMS also botched the correction arm of the defense. It failed to conduct an unbiased investiation and to take remedial action against Gonzalez.

Gaulding and Stratton called in Louise Fitzgerald, a psychology professor at the University of Illinois and one of the pioneers in sexual harassment studies, to see how SMS's policy stacked up to industry best practices.

"The SMS preventive and supposedly remedial programs for sexual harassment are seriously inadequate or worse," Fitzgerald wrote in her 21-page expert report. She went on to chastise the company for its "failure to investigate" and for creating a situation in which "it was highly risky" for employees to complain. She also notes that Gonzalez was the only line of communication that Zuniga knew of between herself and SMS.

Steve Befort, of the U of M, agrees that even if there is a policy in place, there can be factors that make it difficult for victims to follow it.

"Sometimes, depending on who is doing the harassing," he explains, "it's difficult for the victim of harassment to go to that person or that person's buddy and complain."

As Stratton and Gaulding built Zuniga's case, they also discovered that she wasn't alone. In addition to Perez, who alleged physical sexual assault, another of Gonzalez's former employees, Claudia Medina, said that Gonzalez had repeatedly made sexual comments toward her, including following her into the bathroom and asking about her sexual preferences.

Beyond Ridgedale, the lawyers looked up all of the sexual harassment complaints that had been filed with SMS from around the country in the three-year period from 2005 to 2007. They found 114 cases — and those were just the instances that had made it to SMS's HR and been logged.

About a third of those complaints were filed against the complainant's boss. Many of the complaints were never adjudicated or even investigated by the company.

The lawyers' investigation also turned up new information, like the internet history on Gonzalez's office computer. They found that the computer had been used to browse violent porn sites like www.free-rape-pics.us. Gonzalez's computer was in his locked office, to which only he had keys, and he was the only SMS employee at Ridgedale Center whose job included computer use.

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13 comments
ElChingon82
ElChingon82

Just because she is an illegal immigrant doesn't take away the fact that he is a rapist.....PERIOD!!! NO woman illegal or not should be a victim of rape!

mdc701
mdc701

Thank you for writing about this.  No woman whether legal or illegal, law abiding or not, deserves or should go through a rape.

Truth_Teller_1
Truth_Teller_1 topcommenter

This person has no business being here.  She has comitted a criminal act.   If she was still in Mexico, this would have never happened to her.

Obviously, she has no drivers license, or liability insurance, or health insurance.  If she ever would have an accident, well you or your insurance company is gonna 'eat it'.

If she really wants to make things better - stay in Mexico and make it a better country for future generations.  These illegal aliens are selfish people:  They desert their country of origin, and steal our infrstructure.   I'd rather pay US citizens $20/hr to clean the Mall, and pay for the costs upfront - higher rents/prices.  All that happens is that our gubmint taxes us, to pay for these illegal aliens.

Breeders.  Need I say more?

blacksheep
blacksheep

Why was she too timid to tell her own husband, who could have beat the heck out of the guy?

But now you make her out as brave? Deport her, end of story!

_Joe_
_Joe_

@East_Coast_Doug I'm inclined to agree.  Some measure of blame should fall on the people who get themselves into this situation.  However, the laws of our country are also there to protect people, not just citizens.  Criminals are still protected by law.  If you beat the tar out of someone that just got a speeding ticket, you are still breaking the law.  The fact that they too have broken some kind of law is irrelevant.

 However, as long as we have American citizens willing to break the law and hire illegal aliens, they will keep coming.  The focus needs to be on people doing the hiring.  Make the penalty so high that it is not worth the risk.  If someone can save $30K a year by hiring an illegal worker, then make the penalty for getting caught $500K per instance.  The problem will go away overnight.

erikostrom
erikostrom

@blacksheep What they said, and also, in America we don't think vigilante justice is the best justice.

hmcgarvey
hmcgarvey

@blacksheep First, you clearly you don't understand the psychological effects of rape. Illegal or not, she's a human being with emotions and feelings. As clearly explained in the article, there are numerous reasons that many women and men may not come forward with these allegations immediately. Second, I'm really glad that your concern is about deporting a woman, who is now here legally, rather than understanding why this man continues to be employed, is deemed an excellent supervisor and is likely continuing the same abuse that has affected (at LEAST) two women for their entire lives. Just no.

sblsister
sblsister

@blacksheep She was certainly afraid that if she told him, he would indeed beat the heck of the guy, get arrested, and made things worse.  She truly had no reasonable recourse.  She was very brave.  I hope she has a happy life right here in the USA, and I wish nothing but the best for her, her husband, and her children.  Gonzalez, on the other hand, deserves prison. 

Truth_Teller_1
Truth_Teller_1 topcommenter

I agree that she should be protected by our laws. 

I wonder what kind of fake / altered / borrowed documents she used to get the job?

_Joe_
_Joe_

@j.reiter

So she can break the laws and then claim she wants to be protected by the laws? 

Yes.  For the same reason that I don't get a free pass to beat you senseless and take your things because of that speeding ticket you got that one time.

 If it is really so horrible then why do people continue to come here illegally and work?

 Because there are American businesses that will pay them.  American businesses that care more about their bottom line and getting the cheapest labor they can find than they do about creating jobs and employing their fellow citizens.The problem starts right here.  It's not coming across the border with these people.


j.reiter
j.reiter

So she can break the laws and then claim she wants to be protected by the laws?  If it is really so horrible then why do people continue to come here illegally and work?

_Joe_
_Joe_

@East_Coast_Doug Nothing that would stand up to even a cursory amount of scrutiny.  The employers are equally if not more culpable in this mess.

 
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