ALEXANDER DUDLEY—While 2017 proved to be quite the tumultuous year, two of the biggest shocks included the revelation of sexual assault and harassment allegations against Harvey Weinstein as well as the criminal charges brought against Larry Nassar, which included seven felony counts of criminal sexual conduct and three counts of criminal sexual conduct. The behavior of both of these men spanned over two decades and has tragically impacted the lives of over 100 women. Disturbingly, behind these men lie a trail of nondisclosure agreements (“NDAs”) that have kept many of these women silent (and the public in the dark) and have allowed the predatory behavior to continue.
In a lawsuit filed in Los Angeles Superior Court, Olympic gold medalist McKayla Maroney alleges that Michigan State and USA Gymnastics, both employers of Nassar, were liable for Nassar’s sexual abuse because of their duties to supervise his work and investigate allegations of misconduct. On multiple occasions, Maroney and several other female gymnasts complained to both organizations about Nassar’s conduct. In one particular response, the university told one of the gymnasts “she didn’t understand the ‘nuanced difference’ between sexual assault and appropriate medical procedure.” USA Gymnastics had reached a settlement agreement with Maroney in December 2016 for a reported $1.25 million that was contingent upon her signing a NDA. USA Gymnastics sought to enforce the $100,000 penalty that came with the breach of Maroney’s NDA when she announced that she would be reading a victim impact statement at Nassar’s sentencing hearing on January 18, 2018. The news of USA Gymnastics’ plan resulted in tremendous public outcry, including disapproval from celebrities such as Chrissy Teigen, who offered to pay the $100,000 so that Maroney could speak about her abuse. After this backlash, USA Gymnastics retracted its intention of enforcing the NDA.
While courts enforce NDAs as valid contracts in many different contexts, states have begun to scrutinize their applicability when they are used as tools to silence victims of sexual assault and harassment. In 2016, California passed Assembly Bill No. 1682, which prohibits the use of NDA’s in civil cases where the “factual foundation” could be prosecuted as a felony sex offense. While the bill presents a step in the right direction, many victims are still not protected by the language and specificity. In the case of Harvey Weinstein, the alleged rapes occurred in New York, London, Utah, and France, which makes it unlikely that the settlements and NDAs would be governed under California law. Recognizing that significant gaps in protection still exist, California State Senator Connie M. Leyva announced that she would introduce legislation that extends the prohibition on NDAs to sexual harassment as well as sex discrimination cases, which would have not been covered under Assembly Bill No. 1682.
Several states, including Florida, have passed what are known as “sunshine-in-litigation” statues, which render confidentiality clauses unenforceable if they conceal information that could be considered a “public hazard.” Florida defines a public hazard as an “instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure or product, that has caused and is likely to cause injury.” Arguably, people like Weinstein and Nassar would fall under this public hazard definition because not only did their behavior inflict injury, it also persisted for a time and in a pattern that is consistent with rates of recidivism for sex offenders.
Courts, however, have not yet applied “sunshine-in-litigation” statutes to NDAs used in sexual assault and harassment cases. Because victims are unlikely to place themselves in a risky position just to generate a test case, it remains uncertain as to what conclusion a court would reach. That being said, given the events of this past year, public policy and opinion have dramatically shifted against NDAs in this context. For too long, victims have been barred from speaking out in fear of the legal consequences associated with their NDAs. Courts and legislatures will have to finally address the rampant sexual abuse that has been affecting our nation as well as the legal tools and frameworks that have allowed the abuse to continue.