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.
These 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 with 95 percent saying
that such behavior usually goes unpunished.
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. 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 veil of secrecy of nondisclosure agreements. This must end!
That’s why I’ve introduced legislation (2018-S 2687) that would
render nonbinding any provision in a settlement agreement that would prohibit
the disclosure of the basic facts related to a claim of sexual harassment,
sexual assault and retaliation for reporting sexual harassment and stalking.
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 perpetrators 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.
In the case of Dr. Larry Nasser, Olympian McKayla Maroney
claimed that USA Gymnastics paid her not to speak about Nassar’s abuse
publicly. Maroney entered into a nondisclosure agreement willingly but
stated that she was traumatized and not in the right frame of mind when she did
so. Maroney used a portion of her financial settlement to pay for
psychological treatment to cope with Nassar’s abuse.
Some opponents of this legislation may argue that this
legislation, if enacted, would lower the amount victims would receive in
settlement compensation. Depending on the nature of the allegation, this
is entirely possible. However, the damage caused by sexual misconduct is
not merely about dollars and cents; it is about accountability and human
dignity. Further, with or without NDAs, there will be fair settlement
offers since companies still won't want to go to trial, especially given the
public’s increased awareness of and disgust with sexual harassment and sexual
assault. Most importantly, the victim’s having the option to go public
with the facts of case will help put a stop to sexual predators who would
surely harm others again if given the opportunity. That is a public good that
you cannot put a price on.
In brief, 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. 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
states of California, Pennsylvania and Washington have already approved similar
legislation. Let us make Rhode Island the next state to take this very positive
The author, James C. Sheehan, represents
District 36 in the Rhode Island State Senate. He resides in North Kingstown.