Opinion: NDA's Protect Sexual Assault Perpetrators

By Sen. James C. Sheehan (D-Dist. 36, North Kingstown, Narragansett)

In October 2017, The New York Times and The New Yorker reported that dozens of women accused Harvey Weinstein, renowned movie producer, of sexual abuse and misconduct over a period of at least 30 years.

This scandal sparked the #metoo movement on social media, and has led to a movement of women speaking-out about harassment by prominent politicians, media executives, entertainers, and others.

Another horrific story of sexual assault involved Dr. Larry Nassar, physician for the U.S. Gymnastics Team, who pleaded guilty to 10 counts of criminal sexual misconduct in the first degree.

Such incidences are far from isolated, a 2017 poll by ABC News and The Washington Post found that 54 percent of American women report receiving “unwanted and inappropriate” sexual advances. Further, among women who have been subjected to unwanted work-related sexual advances, 8 in 10 say it rose to the level of sexual harassment, and one-third say it went a step further, to sexual abuse. This means that some 33 million women have reported to have been sexually harassed and 14 million to have been sexually abused in work-related incidences.

How did these high profile perpetrators keep their sexual misconduct quiet for so long? Their actions were, in part, concealed from public view through the use of nondisclosure agreements (“NDAs”) that kept their victims silent. How many incidences of sexual misconduct, however, have been hidden from public view through the use of NDAs? We may never know.

I find it unconscionable and unjust as a matter of public policy that perpetrators of sexual harassment and assault would be able to hide behind a dark veil of secrecy of nondisclosure agreements. That’s why I’ve introduced legislation (2019-S 0456) that would place limits on the terms that can be included in an agreement that settles a claim of sexual harassment, retaliation for reporting sexual harassment and stalking. It would permit victims the opportunity to make public, if they choose, the identity and nature of the charge after a five-year period.

Employers have used NDAs for years for legitimate purposes such as protecting trade secrets, inventions and proprietary information. But in recent years, NDAs have been used to protect the reputation of companies in instances when sexual harassment and sexual assault have been alleged, shielding sexual predators from accountability and consequences for their actions. Further, NDAs also silence victims and stop them from discussing abuse — even with their families — and from warning others about the alleged perpetrator, putting innocent people in harm’s way.

If this bill is approved, it would help put an end to the practice of using nondisclosure agreements to cover-up abusive behavior in the workplace and society by providing victims the option to publicly identify those individuals who hurt them — individuals who could hurt others as well if they are not stopped. Putting a five-year limitation on such agreements would also discourage and weed out repeat offenders.

Sexual harassment is a blight, a tragedy and a social crisis. Victims are reluctant enough to talk about what has happened. There is no reason nondisclosure agreements should be used to add to that burden.

The author, James C. Sheehan, represents District 36 in the Rhode Island State Senate. He resides in North Kingstown.