One commonality of the horror stories of Bill Cosby and Harvey Weinstein is the fact that many of their victims were unable to speak out because they signed non disclosure agreements (NDAs) that mandated they stay silent about what happened to them. If the victims talked about what happened to them they could get taken to court and sued for hundred of thousands of dollars. The purpose of civil courts is not to enforce agreements that allow predators to find new victims. This is just rich people using the courts to hide their crimes.
Legislatures should pass laws that declares any NDA that involves criminal activity unenforceable. That way the victims will be more likely to speak out and these monsters can be stopped earlier. There is precedence for courts rendering agreements non-enforceable, many neighborhoods used to have clauses written in to purchase agreements that did not allow the owner to sell to blacks or jews. Those are no longer enforced and NDAs about criminal activity like rape or sexual assault could go the same way.
What could be the downside?
Is it “criminal activity” if it hasn’t been adjudicated as such?
In Britain, as far as I can see, NDAs are used for business, employment, invention etc., so I assume those sort are vital.
I dunno what the American form is for including ‘The party of the first part having asked the party of the second part to withdraw their underwear and engage in pleasurable discourse provides financial compensation to the agreed amount in consideration of the party of the second part never revealing this or any other conversation or interaction to any court, media or any other person’; but it seems to work.
If the actions were actionable, I would suppose that as an officer of the court, the lawyers providing this service would be liable for concealing a crime.
I’m having trouble agreeing with the OP’s outrage considering the victims agreed to the NDA - it wasn’t forced on them. The could have rejected the offer and publicized everything in court.
Why ban them? It seems to me both sides benefit from them. The accused has his murky deeds hushed up, the accuser gets a nice payout. And best of all the accuser can change their mind any time down the line and reveal all. Sure, the accuser’s lawyers can come after her but by then public opinion will be behind her and any financial penalties will be taken care of by Kickstarter or one of the other crowdfunding sites. NDOs are great, especially for victims.
A lot of the accusers tried to go the legal/courtroom route, and were told that there was no evidence, so there would be no charges.
Sometimes it becomes a “I can’t get the bastard put away, so I will make him pay some other way!” And maybe, by paying out, the accused seems to be admiring that they did it? Some small measure of ‘justice’.
Conviction for sexual assault is pathetically low. I don’t blame anyone that may not go that route.
My understanding of NDAs in the USA is similar. That they exist to mostly protect IP for businesses.
I’ve heard of NDAs being used to prevent disclosing the terms of a settlement (which always sounded shady to me). IANAL, but I would be very surprised if an NDA preventing the disclosure of a crime were enforceable at all. You would never be able to process any corporate crimes or violations of the RICO act because every employee would be under an NDA.
“I’m sorries ya’ honor. Buts I can’t disclose nuttin’ bout Tony’s alleged involvements wit da’ Gambino family dues to da’ Non-Disclosure Agreement I has done signed.”
What I suspect happened with Bill Cosby and Harvey Weinstein is that the various victims were given large payouts (settlements) to avoid going to court and NDA’s to sign so as to entice them to never speak out about it / provide a measure of deniability. And since the individuals in question presumably wanted to go on to have lucrative Hollywood careers and win Academy Awards and whatnot, they were content to go with the program.
I also suspect that the problem goes far beyond Bill Cosby or Harvey Weinstein as unpleasant outliers. They may be the most extreme cases, but one does not become that big of a success in any industry if their behavior is that far out of accepted norms.
It is good for the abuser to have the accusations dropped and good for the victim to have the money but it is not good for society because it lets the abuser off to find new victims.
NDAs are not enforceable against law enforcement or during criminal proceedings. But if a victim gives an interview or let their friends know then they would be enforceable.
The downside is that accused millionaires would be much less likely to agree to settlements if they couldn’t make enforceable NDAs. (You seem to recognize this in a subsequent post.)
The problem is that the more accusations the more weight people will give to each new accusation. This means that law enforcement will take new accusations more seriously and new victims will be believed and the abusers prosecuted.
Now, a malefactor settles and pays his victim, because he wants to avoid the public spectacle a trial will bring. This gives the victim (or, I suppose, "the accuser,) more leverage than would otherwise exist.
If the malefactor could not enforce confidentiality as a matter of law, then his motives to settle in the first place diminish considerably. He’d be much more likely to say, in effect, “Then sue me, and get ready to to buried in a vicious legal fight.”
Does an NDA have any bearing at all on criminal cases? Have there ever been any cases where someone was unable to make a statement to the police or a prosecutor because they’ve signed an NDA? Correct me if I am wrong but attempting so stop someone talking to police via an NDA seems like it would be pretty blatant obstruction of justice.
I can see the OPs point, in that in these cases the two parties have un-equal standing.
Rapist: So, I raped you. Here’s some money. And you have to agree to never tell anyone.
Vicitim: Hell no!
Rapist: Ok, so I’ll deny it and sue you for slander, and you don’t get money.
Victim: So, I’m now a victim twice over?
Rapist: Your choice, A or B.
Victim: …
It depends.
No agreement can withstand a subpoena. But assuming the agreement was reached before any criminal investigation was underway, a civil settlement that includes a confidentiality agreement can certainly require the recipient to not voluntarily approach police. As long as the Commonwealth can vindicate its interests by subpoena, such an agreement is enforceable against the party who accepted it.
Not everyone wants to blaze that trail, and it’s very unfair to try to guilt a survivor into it.
Even those that work in Prosecutions and law enforcement can’t, in good conscience advise survivors to come forward, knowing that the odds of being successful are so small.
Reinforcing this point. Law is meant to operate at the social level not the individual level. Having everything play out fine at the individual level isn’t sufficient if the social level can be improved.
That said, it’s possible that the difficulty or prosecuting a case is too difficult for most accusers to be able to afford, so the closest that society can, practically speaking, come to penalizing people for these sorts of crimes may well be through settlement payments via a trade agreement for an NDA.
I don’t really know. Someone would need to go in and really do some investigation to determine which path was more likely to help the most people.
It would be interesting if courts started regarding written NDAs as a signed confession.
By “interesting,” of course, you mean, “violative of the Fifth and Sixth Amendments?”
Really ? Well, we are free from your Constitution.