The Harvey Weinstein scandal has done more than reveal the culture of sexual abuse that has infected the entertainment industry for generations. It has placed a spotlight on perpetrators and those who protect them using the despicable practice of non-disclosure agreements to intimidate and silence victims.
Throughout the past 25 years I have represented thousands of sexual assault victims in civil lawsuits against their molesters and the institutions that facilitated their abuse. Most of these victims were children at the time they were abused. One thing is common through all these cases, the perpetrators and their accomplices dwarf their victims in wealth and power. Indeed, sexual assault is not about sex, it’s about power.
The Catholic Church, media conglomerates, international sports organizations, major universities, public school districts, and corporations have all used non-disclosure agreements to silence victims of sexual assault and molestation — even when those victims are children.
Some attorneys contend that these agreements, which amount to buying the silence of victims, benefit victims by making it faster and easier to settle cases and get them financial compensations.
That is rarely true. Far more often these agreements protect serial perpetrators often shielding them from criminal prosecution and allowing them to seek new victims. How can anyone possibly justify allowing a priest, teacher, doctor or coach to hide their crimes from the public and continue having access to children?
For many years the Roman Catholic heirarchy paid victims an average of $250,000 to settle cases under confidentiality agreements then moved the priests accused of molesting them to other parishes where they continued their abuse.
That practice was ended by the Catholic bishops in 2002, largely as a result of demands made by survivors and their attorneys, as the number of cases against priests continued to escalate.
In 1993, Michael Jackson paid $25,000,000 to settle a case which alleged that he had molested a 13-year-old boy. The non-disclosure of this case forestalled and complicated criminal prosecution for more than a decade.
Harvey Weinstein and Bill O’Reilly routinely silenced victims with non-disclosure agreements. Bill Cosby reportedly sued a victim because she agreed to speak to prosecutors in his Pennsylvania criminal case.
For many years the Olympic organizations that govern swimming, gymnastics and other sports have used non-disclosure agreements to protect themselves and the coaches and others who molest young athletes and engage in other serious misconduct.
When victims do find the courage to come forward and seek justice, they are often silenced again by non-disclosure agreements.
Non-disclosure agreements place victims and their attorneys in an untenable position. They are given the choice between giving victims the ability to pay for therapy and other medical treatment to help them recover from their abuse or face years of protracted litigation with uncertain results.
Institutions and the abusers they protect should not be given the power to force this kind of choice.
My home state of California has adopted legislation that should be a model for the nation. Under California law, confidentiality agreements are not enforceable if they are a part of civil settlements which involve some potential crimes including felony sexual assault and child sex abuse.
New California legislation has been proposed that could entirely ban secret settlements in sexual harassment and sexual assault cases.
Even when these standards are placed into law they are sometimes ignored by attorneys seeking quick and quiet settlement of cases. I recommend adding penalties which place the licenses of attorneys at risk if they negotiate confidential settlements in violation of State law.
Victims can and should be allowed to keep their identities private, especially when they are children. But abusers and those who enable them should not. When major institutions can no longer protect their “brand” by hiding decades of sexual abuse behind confidentiality agreements, they will work harder to stop the molesters within their ranks.
Justice and compensation for sexual assault victims is important. Even more important is healing. Healing does not occur when victims are forced to remain silent about their abuse and the public cannot be protected from abusers when law enforcement does not learn their identities. It is time to reform our legal system in a way that places the interests of victims and public safety first.