We cannot insist that sexual assault survivors ‘go public’
In this Globe and Mail op-ed, Emma Phillips comments on the criticisms leveled at the use of non-disclosure agreements in sexual abuse and harassment cases.
Last week, Megan Twohey and Jodi Kantor, two of the journalists responsible for exposing sexual assault allegations against Harvey Weinstein and triggering the #MeToo movement, revealed how the feminist lawyer mother-daughter duo, Gloria Allred and Lisa Bloom, were themselves complicit in protecting Mr. Weinstein. In particular, Ms. Twohey and Ms. Kantor decry the use of “non-disclosure agreements,” or NDAs, a legal contract which guarantees that the complainant will keep her allegations confidential in exchange for a monetary settlement. NDA’s are, indeed, an ugly instrument. But what Ms. Twohey and Ms. Kantor miss is that going public with allegations of sexual harassment isn’t the right option for everyone.
While #MeToo has been a powerful movement, we cannot put the burden of exposing the Weinsteins of the world solely on the shoulders of survivors, or judge them when they choose to put a tragic and painful episode behind them in order to move forward with their lives.
On the New York Times podcast The Daily, Ms. Twohey and Ms. Kantor detail how both Ms. Bloom and Ms. Allred sought to use the Weinstein allegations to their professional advantage. For her part, Ms. Bloom used her reputation and experience as a fierce advocate for women to market her legal and PR services directly to Mr. Weinstein. “I feel equipped to help you against the [Rose McGowans] of the world,” Ms. Bloom wrote to Mr. Weinstein, “because I have represented so many of them. They start out as impressive, bold women, but the more one presses for evidence, the weaknesses and lies are revealed.” For anyone who has worked with survivors, Ms. Bloom’s blithe assassination of her clients’ experiences and integrity is truly abhorrent.
In the case of Ms. Allred, the journalists report how the high-profile lawyer was quick to represent Mr. Weinstein’s victims as soon as the story started to break in 2017. Yet it turns out that years previously, in 2004, Ms. Allred’s law firm had advised another alleged Weinstein victim to settle her allegations for financial compensation and an ironclad NDA. At the same time that Ms. Allred was encouraging women to publicly accuse Mr. Weinstein, Ms. Twohey and Ms. Kantor point out, Ms. Allred knew that her office had participated in the kind of cover-up that allowed Mr. Weinstein to continue in his predatory behaviour.
What Ms. Twohey and Ms. Kantor’s story neglects is that not every survivor wants to be made the poster-child for #MeToo. It’s one thing to publicly accuse a powerful aggressor in the company of dozens of other women; it’s another to be the lone voice. We know what the legal system and the media can do to those who go public – never mind trolls and anyone with a Twitter or Facebook account. It takes extraordinary courage to accuse an aggressor (whether or not they have celebrity status) of sexual harassment, and it can also result in real personal sacrifice – including re-traumatization, serious stigma, reputational damage, legal costs and tremendous time and energy for as long as the legal battle wears on. I am by no means discouraging survivors from coming forward. We need women (and men) to take a stand so that we can push the law forward and shift societal norms. There have been numerous occasions when I have desperately wanted a client not to settle, because they had strong facts upon which to fight an important human rights claim. But as a lawyer, it is not my job to push my clients into fighting the battles that I want to see fought. I have to be attentive to their own personal needs and interests.
Public allegations are an important mechanism for accountability, but some survivors will never come forward unless they can be assured of absolute confidentiality. The risks of stigma and reprisals are too great. It is for this reason that institutions such as the Canadian Armed Forces and numerous universities have created confidential mechanisms for reporting sexual violence – in order to ensure that at the very least, individuals who have experienced these harms can get therapeutic support, medical care and advice on their legal options. At the same time, the institutions themselves gain more information about such incidents so they can take preventative measures. This is another important way in which we can ensure social change over time.
Non-disclosure agreements have an ugly reputation, and deservedly so. But in attending to the rights and interests of survivors, we also cannot insist that every individual “go public.” Sexual violence is devastating in part because it undermines the survivor’s agency. Part of the remedy is to give them that agency back again.
Emma Phillips is a labour lawyer who has acted as legal counsel on prominent reviews addressing sexual harassment in organizations, including the Canadian Armed Forces. She is a partner at Goldblatt Partners in Toronto.