When sexual harassers prey on victims, the American way has been to hush it up, to pressure the victim with legal agreements to never speak of it.
Non-disclosure agreements were Hollywood mogul Harvey Weinstein’s modus operandi. And his behavior was deplorable.
For decades, he allegedly sexually attacked actors, often talented up-and-coming women whom he could threaten with torpedoing their careers. Now, they are speaking out, with some breaking the silence required by their previous financial settlements.
Weinstein’s escapades have brought attention to the legal mechanism that shrouded so many of his misdeeds.
The assumption is that when victims sign on the dotted line of non-disclosure agreements and accept money, they essentially agree never to sound an alert, never to let another woman know what dangers might lurk in a particular workplace with a certain boss or the guy in the next cubicle.
It’s a debilitating, isolating proposition that too often further damages the victim.
So the outcry to outright ban non-disclosure agreements in sexual assault cases is as understandable as it is unproductive.
Yet there is a real danger with either the courts or Congress legislating what people can agree to in a voluntarily negotiated settlement. It’s not the right approach.
Non-disclosure agreements do not preclude a person from speaking to the U.S. Equal Employment Opportunity Commission or other government agencies.
Nor do they bar filing criminal charges or helping with that investigation.
Those who sign them are kept off of the talk-show circuit, but they’re not banned from cooperating in investigations. And the EEOC can act, even if an agreement requires the person to withdraw a previously filed claim.
For the average person, that is important.
Most women who experience harassment are not actors. They have no deep pockets, no pending movie deals or publicists to help them manage. Nor are most women involved in highly-publicized cases that compel more victims to speak out, as has happened with Weinstein.
Further, there is some cover for breaking a non-disclosure agreement if enough people are speaking out and if thresholds of what is considered public information are crossed. That’s happening in Weinstein’s case and could in others as well.
But to really move society forward, what’s needed are strong mechanisms to encourage reporting of unwanted or inappropriate behavior. And businesses must be held accountable when they do not respond to such complaints.
Non-disclosure agreements do not preclude those outcomes.
As one woman, a sexual assault survivor pointed out, financial compensation would have helped her a great deal. The cost of her therapy alone is five figures. A single mother, she files it under “coping and self care,” but knows that it depleted her savings.
The shaming of Weinstein is encouraging. It signals that a wider swath of America will no longer put up with such abuses of power. And certainly, a woman resolutely standing up against her perpetrator is a praiseworthy image of strength.
But we cannot expect all women (or all male victims) to be as vocal as Rose McGowan. She’s boldly spoken out about an alleged rape by Weinstein and her reportedly $100,000 agreement with him. In part, her outreach has lead to the onslaught of other women coming forward _ more than 80 women _ with their own accounts of forced sexual encounters with the producer.
Many people will not want to be that public. And they shouldn’t have to be for the law to protect them.
They want the harassment to stop. They want to ensure that it doesn’t happen to another person. And they want the perpetrator punished.
All of that can still be accomplished. Even after signing a non-disclosure agreement.