If you’ve yet to hear of a Non-Disclosure Agreement (NDA) or Confidentiality Agreement (CA), you must have been living under a rock for the past few months. It’s purpose? To prevent confidential information and trade secrets (like KFC’s 11 herbs and spices) from getting out. However, the abuse of these agreements by powerful men in order to silence victims is being discovered on an almost daily basis.
The use of the NDA to silence victims is how men like Harvey Weinstein and USA Gymnastics doctor Larry Nassar were able to continue their abuses for so long. It’s how the abuse scandal in the Catholic Church took so long to be revealed. In the case of Larry Nassar, McKayla Maroney, an Olympic-gold-medal-winning gymnast and one of Nassar’s victims, would receive a $100,000 fine should she speak out in her lawsuit against USA Gymnastics. In her suit, Maroney claims that USA Gymnastics paid her off to avoid a scandal, something her lawyers call “an immoral and illegal attempt to silence a victim.” Juliet Huddy, who eventually came forward against Fox News’ former anchor Bill O’Reilly, said that she signed an NDA because she “was terrified” of what Fox News would do to her in order to protect themselves and their number one ratings draw. Legal action laid against Rose McGowan by Harvey Weinstein has, by her account, forced her into selling her house.
Olympic Gold Winning Gymnast McKayla Moroney 
Former Fox host and Bill O’Reilly accuser Juliet Huddy 
Actress and Harvey Weinstein accuser Rose McGowan
The danger with these kinds of agreements is threefold. The first problem is that they enable abusers. They empower abusers with the belief that they either won’t get caught, or if they do get caught they can simply pay off the abused and everything will be fine. The second is that they silence victims. There’s a lot of healing to be had in talking. Therapists say that a lot, they encourage you to talk about your experiences and your feelings about those experiences in order to get to the root cause of your problems. Or, at least, to get you to figure out the root cause of your problems. If victims are under a gag order they cannot discuss it. The healing, in theory cannot happen – even in a doctor’s office. Even doctor-patient confidentiality doesn’t cover that. Third, and this one is connected but, in empowering the abusers and in silencing victims, more potential victims enter into relationships with the abuser. Because they don’t know what happened at, say, the Peninsula Hotel, they won’t know not to go into the hotel suite at the Four Seasons.
Can you imagine the number of women who wouldn’t have been sexually harassed had others not felt threatened enough to sign NDAs? In the past few months, there has been a long-awaited moment of reckoning. It is high time that the legal system caught up. In the U.S. an NDA only stops being applicable when that agreement swears the signee to silence over a federal crime – state crimes, by all accounts, do not count. Sexual harassment and sexual assault are only covered under State law and tend to come up in civil cases rather than criminal ones. So, anyone who should break them – even to report an assault is left open to suit and paying a fine. That protects no one except abusers. The law, and indeed lawyers, need to catch up to basic moralism. It would be nothing short of appalling if they did not.
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