The history of defamation law is the history of protecting powerful men’s feelings. For centuries, the right to privacy and to protect one’s honor was reserved for them, and truth was no defense against punishment—even if the king was a pedophile, it was defamatory to say so.
Though the law has changed, too often the outcomes have not. We still allow the powerful to silence their accusers, nowadays through non-disclosure agreements. The law doesn’t allow other sorts of criminals to buy their victims’ silence, so the question now must be why we continue to let sexual criminals do just that.
It arises after Harvey Weinstein’s horrific acts were finally made public thanks to the many brave women who spoke to journalists at The New York Times and The New Yorker. A Times spokesperson, Danielle Rhoades Ha, has challenged him to release women accusing him of sexual harassment and assault from the non-disclosure agreements they signed that impose economic and legal penalties for speaking the truth.
Weinstein’s alleged acts go back decades, but previous attempts to report them were stymied in large part by the NDAs. Sharon Waxman, then at the Times, investigated a story about Weinstein in 2004, she wrote recently for The Wrap, that never ran as the mogul’s attorneys pushed back and women feared the expensive legal consequences of speaking up.
In the face of this month’s accusations, Weinstein again threatened to sue, hiring Charles Harder, the lawyer who represented Hulk Hogan in the defamation suit that decimated Gawker Media. Harder, who’s now representing Jared Kushner, left Weinstein only after the outcry reached epic proportions—suggesting that until then he thought this might be a winning case for him.
It’s hard not to despair when reading about Ambra Battilana Gutierrez’s settlement in The New Yorker. When Gutierrez was assaulted by Weinstein in 2015, she went straight to the police. She did everything we insist that victims of sexual assault do, even providing taped evidence of Weinstein’s criminal behavior. The system failed her all the same, when District Attorney Cy Vance decided Weinstein’s taped confession wasn’t enough to bring charges, and she, too, was forced to settle.
Her charges were front-page news in both New York tabloids, but mostly ignored by the Times, which ran just two short stories about them—“Weinstein Questioned,” and “No Charges for Weinstein.” In between, the paper ran a three-page spread about him, and the Broadway show he gave her tickets to just after she says he assaulted her, with just one passing mention of the case.
Guttierez, too, reportedly signed an NDA, raising critical questions about issues society has learned to take for granted: When is it OK to buy and sell silence? When freedom of contract and freedom of speech conflict with one another, which comes out on top? Whose secrets is our legal system designed to protect?
Most importantly, do we not, as Americans, have a public interest in exposing sexual abuse and gender discrimination in this country?
NDAs covering government secrets or trade secrets are strictly enforced, because our government privileges national security and private property interests. Elsewhere, however, Congress has shown an interest in voiding contracts for silence in the interest of public disclosure.
Whistleblower statutes exist to protect employees from retaliation by their employers when disclosing issues of major public concern. They are meant to prevent more situations such as the time CBS buried a 60 Minutes interview with Jeffrey Wigand, a former executive at Brown & Williamson, who divulged harmful behaviors by the tobacco industry.
CBS refused to air the interview for a year, acquiescing only after The Wall Street Journal published Wigand’s testimony in a case between the state of Mississippi and Brown & Williamson for costs from smoking-related deaths.
Contracts to conceal a crime are supposed to be unenforceable. In Bowman v. Parma Board of Education, for example, the court voided an employment separation contract that forbade a school district from telling the next school district that the man they’d hired was a convicted pedophile.
Courts have the power in civil cases to void confidentiality agreements where disclosure is in the public interest, and have done so in matters of environmental safety, public health, and product safety.
Judges could use the same reasoning to protect victims who blow the whistle on sexual predators, but they don’t. The message is clear: Women’s safety is less valuable than a powerful man’s reputation.
If courts treated sexual abuse with the gravity it deserves, they might view contracts to conceal such behavior as unconscionable or inherently coercive. Weinstein’s victims would probably agree—as Weinstein’s ex-employee Lauren O’Connor wrote in a memo, “the balance of power is me: 0, Harvey Weinstein, 10.”
Not all women are complaining. Ivana Trump, for example, seems pleased with her arrangement. Trump’s ex-wife recently resurfaced to promote a new book about raising Trump’s children. She’s been noticeably absent until now, perhaps to avoid commenting on court documents revealing a deposition she gave during her divorce from Donald in which she accused him of raping her.
When The Daily Beast reported on her claim last year, a lawyer for Trump said: “I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know… So I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting. You understand me?
“You write a story that has Mr. Trump’s name in it, with the word ‘rape,’ and I’m going to mess your life up… for as long as you’re on this frickin’ planet… you’re going to have judgments against you, so much money, you’ll never know how to get out from underneath it.”
Trump has denied the accusation, but Ivana’s avoidance of it speaks to a fundamental issue: The two parties to the contract may be satisfied—Donald with Ivana’s silence, and Ivana with Donald’s money, but the public interest is not.
As Carol Bailey, founder of Integrative Family Law in Seattle, Washington, recently told me, “We consider it unacceptable in our society to tell an individual that they can’t enter into a contract for money. People are free to contract for anything not against public policy.” She added, “If there is no other recourse against an assault, is it bad policy to deny victims financial leverage against the accused?
“If you can’t impose a criminal penalty, impose a financial penalty,” she concluded.
As we’ve seen, criminal penalties are rare for this kind of behavior. Even with the flood of allegations, the repercussions for the likes of Bill Cosby, Roger Ailes, Bill O’Reilly, and Travis Kalanick have been limited.
The starkest symbols of gender imbalance in America today are the numerous women who have accused Donald Trump of harassment or assault. How effective is their recourse against the president? Is it good policy to enforce contracts which conceal serial assaults on women by public figures?
For various reasons, authorities regularly refuse to prosecute crimes like sexual assault.
The evidentiary obstacles inherent to gender crimes are well known. It’s telling, however, that the only time most men weep about procedure is when a rapist loses his school scholarship.
Such men aren’t similarly frantic at the revelation that Harvey Weinstein’s lawyer, David Boies, paid New York City District Attorney Cyrus Vance Jr. $10,000 days after Vance declined to pursue sexual assault charges against Weinstein for his assault of Ambra Battilana Gutierrez. Corruption always punches down.
For men like Trump and Weinstein, buying silence after the fact is as reflexive as the behavior that makes it necessary.
This is also true for behavior at home, just as much as for the workplace. Like other gender crimes, instances of domestic violence and marital rape are often relegated to civil proceedings.
Our criminal justice system handles gender violence so poorly that one could argue that it has effectively been decriminalized. For example, we allow universities to privately adjudicate rape cases, as if academic hearings and the attendant academic punishments appropriately address violent crime.
As for recourse from workplace harassment, it’s a myth that human resources exists for any reason other than to protect management and the corporation’s reputation.
It’s no wonder that claims go unreported. If women felt that justice was achievable in criminal cases of sexual assault, stalking, or false imprisonment, they might be less inclined to stay quiet or to settle civil claims for sexual misconduct.
Instead, victims cannot even say the names of the men who have attacked them for fear of legal, financial, and professional repercussions, dimming their voices even when they do speak. As critic Maureen Ryan wrote for Variety, “I can’t name my attacker for legal reasons. But I won’t be silent any more. A television executive assaulted me, and the specific power dynamics of this industry aid and abet men like him.”
Buying silence has suppressed women’s voices—and imperiled their bodies—for far too long. Letting women speak the truth in public is a necessary first step toward confronting these abuses of power.