Selling Silence: The Morality of Sexual Harassment NDAs
In this post, Scott Altman (USC Gould) discusses his recent JOAP 2022 Annual Essay Prize winning article about the morality of sexual harassment nondisclosure agreements.
Nondisclosure agreements (NDAs) pay sexual harassment and abuse victims not to tell their stories or name their abusers. Harvey Weinstein’s many NDAs, and the #MeToo movement, spurred some states to make such NDAs legally unenforceable.
My Selling Silence article argued in favor of these laws. Sexual wrongdoer NDAs protect abusers, endanger future victims, and undermine deterrence. The article rejected three justifications for wrongdoer NDAs, two of which I will mention briefly before explaining the third.
First, critics say these laws deprive victims of compensation because wrongdoers will not settle or pay as much if unable to extract secrecy promises. However, perpetrators continue to settle cases despite enforcement bans because they fear the risk and publicity of a trial. If compensation is too low, we could change laws to compensate victims adequately without making them trade away secrecy.
Second, critics say we need NDAs to shelter perpetrators from the well-known excesses of social sanctions. I was open to this concern, having previously argued that boycotts, shaming, and shunning were immoral in some contexts. However, the shaming, shunning, and boycotts that defined the #MeToo movement often seemed admirable, even necessary supplements to laws against harassment and abuse. Because false allegations of sexual abuse and unreasonably severe social penalties for abusers seem rare, I concluded that most NDAs with sexual harassers facilitate inappropriate evasion of much-needed social sanctions.
A third objection questions why we condemn NDAs for inducing harmful silence when remaining silent about harassment and abuse without an NDA is permissible. The harms attributed to NDAs—that they endanger future victims and undermine deterrence—arise from all victim silence. Is promising to be silent worse than choosing to be silent for other reasons? Does accepting money for the promise make the silence worse?
Remaining silent based on an NDA is worse than keeping silent for other reasons. As explained below, NDAs promise to breach future duties or refrain from public-spirited acts. We should not enforce such promises. Additionally, NDAs make victims and governments complicit in perpetrator wrongdoing. Victims who remain silent without an NDA do not make illicit promises or become complicit in their abusers’ wrongs.
Promising to Breach Future Duties or Refrain from Public-Spirited Acts
Harassment and abuse victims have no moral duty to speak publicly about their harassment. Coming forward risks trauma, lost privacy, public shaming, career setbacks, and retaliation. Neither law nor morality supports duties to aid others by warning or rescuing them when facing such risks.
However, for some victims, harm from disclosure may fade as time passes. These victims might come to have a moral duty to speak, much like warning or rescuing someone when the cost is low. Because NDAs bind victims to violate potential future duties to disclose, we should not enforce them.
Even victims who will never have a duty to speak may eventually want to disclose. The #MeToo movement was fueled by victims telling stories of harassment and assault that they had kept secret for years. We should not enforce promises whose central aim is to act against the public good.
NDAs and Complicity with Perpetrator Wrongs
Sexual abusers depend on secrecy and complicit secret keepers. By demanding NDAs, harassers make victims and governments complicit in their wrongdoing. We should protect victims from such demands through laws that provide deserved compensation through non-complicit means.
In what sense are victims who sign NDAs and states that enforce them complicit in wrongdoing? According to one prominent theory, people are complicit when they assist wrongdoers and intend to participate in their goals. Victims who sign NDAs connect their goals with the perpetrators’ by agreeing to silence in exchange for a benefit. Victims can be complicit even if they hope the perpetrator fails. They are complicit if they agree to cooperate with the perpetrator’s plan, seek to benefit from that cooperation, and should have anticipated the perpetrator’s purpose.
NDAs make victims complicit in ways that victims who are silent without agreement or payment are not. Merely knowing that one’s silence will facilitate the harasser’s goals lacks key elements of cooperation—agreement and accepting a benefit in exchange for agreeing.
What wrongs are victims complicit in assisting? Signing an NDA with a serial harasser might cooperate with the harasser’s plan to continue harassing. NDAs can facilitate future harassment by hiding past harassment (as they did for Harvey Weinstein). If the victim suspects (or should suspect) this is the NDA’s purpose, the victim becomes complicit in future harassment. Even for a perpetrator who will never re-offend, signing an NDA cooperates with the perpetrator’s effort to avoid shaming and shunning, advancing the harasser’s wrongful plan to evade punishment.
Of course, complicity can be excusable when one’s choices are constrained. No one would condemn as complicit a bank employee who supplied the vault combination to robbers under threat of violence. Although victims who sign NDAs are not comparably coerced, their limited choices and need for compensation mitigate the wrong of signing. And, of course, victim complicity does not compare to perpetrator wrongdoing. Complicity matters not because signing an NDA is blameworthy. Rather, it matters because we should enable victims to avoid the moral dilemma of choosing between compensation and helping their perpetrator commit further wrongs.
Conclusion
Although victims have good reasons for silence, the state should help victims retain the ability to speak out by refusing to enforce wrongdoer NDAs and increasing victim compensation. Supporting victim speech would deter future harassment, allow some victims to fulfill duties, and help others to become good Samaritans. We should compensate victims adequately so they need not choose between receiving compensation and making themselves or the state complicit in wrongdoing.
