Finlay: Ban the legal tool that silences women on sexual misconduct

Why is the federal government still allowing non-disclosure agreements (NDAs) to be used as a weapon to gag victims of gender violence and sexual harassment?

For years, advocates and victims alike have been warning that these legal contrivances contribute to the culture of fear and silence that allowed serial predators such as Harvey Weinstein to widen their circle of abuse. NDAs were the instrument that enabled Hockey Canada to cover up a history of sexual assault against women.

Evidence of the toxic sting of NDAs is becoming impossible to ignore. The United Kingdom, several U.S. states and Prince Edward Island have moved to provide some limited protection in the use of these devices. But Canada, at the federal level, has not budged, leaving the country’s largest employer oddly out of step with a much-needed part of #MeToo reckoning.

NDAs are reflexively sought by perpetrators and their employers because they provide a bodyguard of judicially enforceable machinery that shields wrongdoers from liability and protects them from public censure. In the 16th century, women were silenced by powerful men using weapons of torture such as the scold’s bridle, which impaled the tongue to prevent speech. Today, NDAs can be just as effective in muzzling women who pose a “threat” to predators and enabling organizations.

Gender violence and sexual harassment are known to trigger an avalanche of life-altering health consequences such as high blood pressure, anxiety and sleep disorder. As a form of institutional betrayal, NDAs add another layer of physical and emotional damage, including PTSD, depression and suicide attempts.

As we learned again from the Truth and Reconciliation Commission, it is a natural condition of the healing process that victims of trauma be free to share their truths in ways, spaces and with communities of their choice. Turning victims into unspeaking witnesses for their unspeakable experiences compounds the trauma and thwarts meaningful healing. If that’s not bad enough, NDAs typically have no sunset clause, raising their chokehold to the equivalent of a life-sentence.

For many women, the aftermath of gender violence and sexual harassment is the lowest point in their life. That’s when NDAs come into the picture. Duplicitous employers have developed well-honed trade craft to exploit this vulnerability by launching an arsenal of weapons to make victims feel alone, unwelcome and afraid, pushing them into the suffocating grip of an NDA. Above all, wily lawyers and misbehaving employers want to make sure that a victim’s voice will no longer imperil the status quo which, in these situations, is Latin for the old boys’ club.

It’s not surprising that the promise of a quick financial settlement becomes the shiny object that distracts from the NDA’s draconian terms. For victims desperate to get on with their lives, this magic trick creates the illusion of a way forward that can appear irresistible. But for too many, NDAs represent an inflection point that signals only one direction: downward.

NDAs create the very conditions that are the opposite of what lawmakers, advocates and thinking society should be seeking: an end to sexualized wrongdoing. The shroud of coerced silence, such as the kind that kept Hockey Canada’s scandals secret, allows bad actors to block victims from smashing the glass to warn others. NDAs also keep the public in the dark about just how safe women are in the workplace and whether public policy is failing in its job.

Most women never report incidents of gender violence and sexual harassment. A big reason is that they fear the dire consequences of coming forward. Many have found themselves exiled to an island of what one philosopher calls “ethical loneliness,” making the trauma of the aftermath often worse than the actions that prompted them to come forward. NDAs magnify that pain by adding a new sequelae of harm. They are part of a system that keeps assaulting victims over and over.

NDAs cannot be rebuilt, restructured or redesigned. Until Canada bans these modern successors to the scold’s bridle, NDAs will continue to censor victims and safeguard perpetrators. It’s time for Parliament to act.

Kathleen Finlay is founder of The Zer0Now Campaign to combat sexual misconduct, and an advocate on women’s health.