Accusers face risks in breaking nondisclosure agreements
By MICHAEL TARM
Dec. 01, 2017
CHICAGO (AP) — Details of alleged sexual assaults by Hollywood mogul Harvey Weinstein, comedian Bill Cosby and other famous figures are now widely known in part because several accusers did something they promised in writing never to do: They talked publicly about their allegations.
When those women spoke out, they broke nondisclosure agreements — contractual pledges not to discuss what happened that are common features of financial settlements. In doing so, they helped start a national discussion about sexual misconduct and showed that the agreements do not necessarily offer the same ironclad protection that for decades has shielded the rich and powerful.
A look at how the agreements work and what can happen when accusers go public anyway:
WHAT THEY ARE
The agreements amount to contracts to buy and sell silence. Some require that accusers destroy emails and other evidence related to the allegations. The pacts are typically signed before an accuser sues or before a lawsuit gets to trial.
The accusers may see trading silence for money as their sole recourse to obtain a degree of justice, especially if statutes of limitation rule out criminal charges. Others fear opting for a civil or criminal trial means an emotionally draining courtroom fight in a media spotlight.
"Many women go into the settlement agreement because they just don't want to face what potentially could be coming," said former Fox News anchor Juliet Huddy, who, according to a New York Times report in January, signed a confidentiality deal to settle claims against former Fox News host Bill O'Reilly. "Some people just want to make it go away and move on with their lives."
Those comments to NBC in October came in her first extended interview since the out-of-court settlement in 2016 with 21st Century Fox, Fox News' parent company. But with her lawyer beside her, she was careful not to break the confidentiality pledge. She talked only generally about women coping with abuse but declined to offer any details about the allegations or settlement.
Zelda Perkins, a former Weinstein assistant, was among the first of his accusers to break a commitment to stay quiet — one she kept for nearly 20 years, until an October interview with the Financial Times. She said she's speaking now about how Weinstein sexually harassed her "on every occasion I was alone with him" and about her 1998 settlement to spark debate "about how egregious these agreements are."
THE CHALLENGE OF ENFORCEMENT
Two parties can agree to do just about anything in writing, but that does not mean courts will enforce the terms if disputes arise. Judges can refuse to enforce confidentiality clauses if there's a wider public interest in breaking the silence, such as an accusers' wish to expose an abuser so others are not victimized. Contracts clearly aimed at concealing crimes can be deemed unenforceable. And, in some instances, judges can decline to enforce them if they violate a victim's free-speech rights.
Most judges would be reluctant to penalize a victim who violates a confidentiality pact, said Alan Garfield, a Delaware law professor. But each state sets its own rules about the provisions, he explained, and there's no consensus among judges about assessing their legality.
"There's just enough uncertainty to make people afraid to breach them," he said.
SUING THE ACCUSER
When victims do break their silence, the accused have the option of suing for breach of contract, asking that settlement payouts be returned. But such action can backfire, making the accused look even worse, said Garfield: "It would look like a continuation of the abuse."
It's also risky. It could generate more sympathy for the accuser and draw more attention to allegations the accused sought to hide in the first place.
Bill Cosby is among the few who tried anyway.
He sued Andrea Constand in early 2016, two months after Pennsylvania authorities charged him with drugging and molesting her in 2004. Cosby argued that she breached confidentiality terms in their 2006 settlement, including by answering prosecutors' questions before they charged him.
She said Cosby opened the way for her to go public by going public himself with sweeping denials about ever assaulting anyone. Cosby withdrew the suit months later.
Cosby's first trial in June ended in a hung jury. His retrial is pending.
OTHER CONFIDENTIALITY AGREEMENTS
Confidentiality provisions are often written into employment contracts. Former Fox News Channel CEO Roger Ailes sued former anchor Gretchen Carlson last year after she said publicly she was fired for refusing his sexual advances. Her allegations led to his ouster. Ailes, who died in May, said her contract prohibited her from going public until both sides first tried closed-door arbitration.
Prenuptial and postnuptial agreements can also contain confidentiality provisions. Donald Trump's did. In divorce-related proceedings, a New York court in 1992 let his first wife, Ivana Trump, strike a nondisclosure clause barring her from ever discussing their years as a couple. An appeals court reversed that decision, saying the confidentiality terms did not "offend public policy as a prior restraint on protected speech."
Legislators in several states are now pushing for laws specifically instructing courts not to enforce provisions that keep names of the accused secret. Pennsylvania state Sen. Judy Schwank said sexual predators have "hidden behind" nondisclosure agreements, enabling harassment "to grow like a cancer."
But among those who could lose out are victims themselves. It's the prospect that accusers might be willing, at the right price, to keep quiet that enables them to press for higher payouts.
If laws say courts cannot enforce such provisions, that leverage is lost. And if confidentiality is off the table, the accused may conclude there's no point in even trying to settle.
Questions about how Congress deals with such cases arose after Rep. John Conyers was accused of sexual harassment by a former aide.
Marion Brown said the Michigan Democrat propositioned her for sex multiple times over more than a decade. She broke a confidentiality agreement Thursday to tell her story to "Today."
"I felt it was worth the risk," Brown said, "to stand up for all the women in the workforce that are voiceless."
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