Preet Bharara, the celebrity US prosecutor, brought two main charges against Indian diplomat Devyani Khobragade: visa fraud and failure to pay Federal minimum wage while overworking her employee. She faces maximum prison sentences as reported by the press:
The diplomat, freed on payment of a $250,000 bond, could face a maximum sentence of 10 years if convicted of visa fraud, and five years for making a false declaration.
Thus, as far as we can tell, Mr. Bharara imagines no prison sentences against India’s Lady Diplomat for her underpaying Ms. Richard, since apparently, the first time violation of the Federal Minimum wage law does not include a prison sentence and therefore counts only as a misdemeanor. Thus, the US government has determined that it is a grave crime to lie on a visa application form (DS-160)–so grave indeed that it allowed the US Marshals to violate its own standards in the treatment of a foreign diplomat (p. 16):
IT IS IMPORTANT THAT LAW ENFORCEMENT and judicial authorities of the United States always treat foreign diplomatic and consular personnel with respect and with due regard for the privileges and immunities to which they are entitled under international law. Any failure to do so has the potential of casting doubt on the commitment of the United States to carry out its international obligations or of negatively influencing larger foreign policy interests. As stated above, however, appropriate caution should not become a total “hands off ’ attitude in connection with criminal law enforcement actions involving diplomats.
The cavity/strip search of Devyani Khobragade violates the State Department’s guidelines, because it entails much more disrespect to India than was ever necessary and has thereby jeopardized larger foreign policy interests.
However, Ms. Khobragade’s attorney has said that when she filled out DS-160, she put down her own monthly salary not her maid’s. She apparently wrote down $4500 per month. Did she really swear to the US government at risk of committing fraud and a ten-year prison sentence that she would pay Sangeeta Richard US $54,000, more than three times the minimum wage? To be her nanny? Her lawyer says no, she was indicating her own salary. This has an air of sanity to it.
I would think also that math is not everyone’s strong point and had Ms. Khobragade herself calculated the rupees to the greenback, she might have used the wrong exchange rate or made a error of math. A few years ago, as I was embarking an international flight in Toronto, Canadian homeland security accosted me and asked me how much currency I was carrying out of the country. I had something like 150,000 XAF (central African francs), and the officer was very angry with me until she learned that it was only the equivalent of about $400 Canadian. Not everyone is good at exchange rates and currencies. Form Crime may just be another name for bad math or misreading the instructions for the form. Should anyone in a free country risk ten years in jail for filling out a form incorrectly? In the USA, the land of freedom, it is a real possibility.
So human error, without intent to disobey the law or a law, happens everyday. But when it happens on a form for the US government, all of sudden it is a felony and could land you in jail. And even if you enjoy diplomatic immunity, the US will argue that it is a grave crime, at the level of murder or human trafficking.