Ex-Diplomat Not Immune|From Maid’s Abuse Claims

(CN) - A former Kuwaiti diplomat can't assert diplomatic immunity over a maid's claim that he raped, enslaved and abused her, the 2nd Circuit ruled, but reversed a premature default judgment against the ex-diplomat and his wife.

Indian native Vishranthamma Swarna, a mother of five, said Badar Al-Awadi and his wife, Halal Muhammad Al-Shaitan, enticed her to leave her maid position in Kuwait, where she worked for a high-ranking police officer, and become their live-in caretaker in New York City.

Al-Awadi worked for the Kuwait Missions at the United Nations, and the couple needed someone to cook, clean and care for their two children.

Swarna, who was her family's sole source of income after her husband developed heart problems, eventually accepted the offer.

The couple allegedly promised to pay her $2,000 a month, give her an annual paid vacation home to India and let her take Sundays off to attend church. But they kept none of their promises, according to Swarna.

She said she was paid just $200 to $300 per month, and even that meager amount was sent home to her family in India, leaving her no money of her own. She allegedly worked 17 hours a day, seven days a week caring for the children, cleaning, cooking and entertaining Kuwait Mission employees.

"The individual defendants did not permit Swarna to leave the apartment without supervision, and even when she was so permitted -- which occurred ten to fifteen times during the course of four years -- she was instructed to look down at the ground and to avoid making eye contact with anyone," the ruling states.

Swarna claimed Al-Awadi raped her repeatedly, saying he would kill her if she told anyone, particularly his wife.

After two years at the apartment, where she was repeatedly physically and psychologically abused, Swarna lost 50 pounds and "looked as if she was afflicted with tuberculosis," according to the ruling.

Swarna said she contemplated suicide.

"When I was working in the Al-Awadi's kitchen, I could look out the window and see the view of what I now know to be the East River and the Citibank office tower in Queens," she said. "I often imagined escaping the Al-Awadi home so that I could jump in the river, drown myself, and end the misery of my life in the Al-Awadi home. It was only the enduring need of my sick husband and five children in India that kept me from doing so."

While Al-Awadi was preparing for a trip to Kuwait in 2000, Swarna said she begged him to send her back to India. He allegedly flew into a rage and beat her, threatening serious harm from his "high-ranking police official" relatives in Kuwait if she did not keep working for his family.

The next morning, Swarna allegedly snatched her passport - which had been confiscated - and fled, carrying only her Bible and pictures of her children. A passing taxi driver helped her find refuge at a nearby temple.

Swarna sued the couple and Kuwait in federal court in 2002, but the case was dismissed on the grounds of diplomatic immunity. The judge told Swarna that she might be able to file again once Al-Awadi was not working for the Kuwait Mission, which she did in 2006.

When none of the defendants answered Swarna's complaint, she filed a motion for default judgment. The federal judge granted the motion, finding that the defendants had "willfully failed to respond to Swarna's complaint and otherwise lacked a meritorious defense."

A three-judge appellate panel in Manhattan ruled that Al-Awadi was not entitled to diplomatic immunity, because he hired Swarna on a personal basis, not as part of his official actions.

And even if Swarna's employment constituted an official act, "it does not follow that Al-Awadi is accorded immunity for any and all acts committed against her," the court ruled.

Because Al-Awadi is not entitled to residual diplomatic immunity, neither is his wife, the panel added. However, the judges said Kuwait is not vicariously liable for the couple's actions.

Although the 2nd Circuit refused to grant residual diplomatic immunity Al-Awadi and his wife, it reversed the default judgment against them as having been "improperly granted."

Judge Roger Miner said the defendants' failure to respond to Swarna's second lawsuit "was not willful but instead based on a mistaken belief" that her claims would be dismissed on grounds of diplomatic immunity, as they were in her first lawsuit.

Miner added that setting aside the default judgment would not prejudice Swarna's case.

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