The Current

Harvey Weinstein case: Should confidentiality agreements exist?

"Most survivors of abuse and harassment do not want to talk about it."
The powerful Hollywood producer Harvey Weinstein, who has been fired by the company he co-founded, stands accused of sexual abuse and harassment following a report last week in the New York Times. (Richard Shotwell/Invision/Associated Press)

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New allegations against Hollywood executive Harvey Weinstein emerged this week, following a bombshell report in the New York Times revealing multiple sexual abuse and harassment accusations.

According to the New Yorker, model Ambra Battilana Gutierrez, recorded Weinstein pressuring her into watching him take a shower as part of a police sting operation, and signed a non-disclosure agreement — agreeing not to talk about the incident in return for a payment. 

Weinstein never faced charges as a result of that sting, the New Yorker reported.

Some U.S. critics question if these kind of agreements should be legal — allowing allegedly illegal behaviour to continue. 

In Canada, confidentiality agreements are often used in sexual assault and harassment cases. According to lawyer Elizabeth Grace, who represents victims of civil sexual assault, abuse, and harassment, there are even some benefits to plaintiffs signing these agreements. 

"Most survivors of abuse and harassment do not want to talk about it," Grace tells The Current's Anna Maria Tremonti.

"So if there is a payment, then frankly it protects them as well. They have a simple answer to nosy questions by journalists, or by other people who see that maybe they have an influx of cash that is, 'I'm not allowed to talk about it' and it just helps them get on with their lives." 
Gwyneth Paltrow and Angelina Jolie added their voices, Oct 10, to allegations against Harvey Weinstein. (David McNew/AFP/Getty Images)

However, Grace says confidentiality agreements have also prevented open dialogue of sexual assault in the workplace and in our culture. 

"Even though the terms might be quite narrow there's going to be a certain reluctance to talk about what's happened before a fear that somehow you might breach the confidentiality."

But she says forcing people to go to court can discourage people to come forward.

"They're a necessary part of our civil court system."

"If people are going to come forward ... there needs to be a way to resolve the case short of years of emotional turmoil, really incredible stress, putting your life on hold, the financial costs of going to court — rarely, rarely in anybody's interest. So I think it's a necessary evil," Grace explains. 

As a lawyer representing a survivor of abuse, Grace says she builds in exceptions so clients can speak to family members, therapists, and advisors.

"I try to build in mutuality so that they not only can ... speak about some matters but the other side, the settling side cannot speak ill of them."

Farrah Khan agrees forcing people to go to court can be damaging. She's a sexual violence support and education manager at Ryerson University.

"What I also agree is that it does create a culture of silence. And so we have to weigh that," Khan tells Tremonti.

"I think what's important is not asking why people are signing it but what is [it] about the industry that doesn't still hold those abusers to account?"

Khan argues signing the agreement doesn't mean the industry, the people around survivors of abuse can't call them out.

"Not just go to sex addiction counselling because that's not what abusers need — they need to talk about the power and control that they feel like that's okay."

Khan believes there's too much responsibility placed on the victims to be the ones who have to speak out.

"The fact that so many people were aware and didn't do something ... and you know what, him — he should have done something because he knew what he was doing was wrong."

Listen to the full segment near the top of this web post.

This segment was produced by The Current's Willow Smith, Ashley Mak and Mary-Catherine McIntosh.