By: Aditi Singh '28
Art by: Dayanara Martinez '28
My dear perfected democracy,
What a perfect woman! Stitches
line her lips, promising to dissolve the hysteria of yesterday.
Threads drag the corners of her mouth into a smile. Don’t mind the saltwater —
It only makes her face sparkle in the sunlight.
Signed,
Man of Your Choice
Nadia, a young Australian woman, was sexually harassed in her workplace by a man taking inappropriate photos of her, and after effectively being forced to resign, was made to sign a non-disclosure agreement in exchange for compensation. With no real accountability taken to protect women like her, Nadia abandoned her dream job and now works in “almost exclusively female settings so she can feel safe.”[1]
Non-disclosure agreements (NDAs) have been criticized for their silencing of women for decades, and while legal reforms have improved women’s safety in the United States, a lack of global reform means that the voices of women around the world continue to be suffocated by a document they signed under traumatic circumstances. Understanding the context of NDAs is crucial to recognizing how women’s oppression is often ingrained in the law and imperative to empowering women. Because one woman’s voice echoes around the world, the silencing of even one woman stifles generations of progress.
The most well-known instance of NDAs role in covering up sexual assault cases was in the 2017 Harvey Weinstein case, in which New York Times reporters Jodi Cantor and Meghan Twohey exposed the systematic abuse he perpetrated within his company — a film studio called Miramax. The company renowned as the parent of hits like Pulp Fiction, The Holdovers, and Scream, women and men alike cherished the opportunity to join such a successful organization, but instead of finding career growth, women were condemned to a lifetime of trauma and isolation. Inviting women working under him to the Peninsula Beverly Hills hotel, Weinstein promised career boosts in exchange for “accepting [his] sexual advances.” As young women were under immense pressure to maximize their careers in a cutthroat industry, Miramax employee at the time Lauren O’Connor aptly described:
I am a 28 year old woman trying to make a living and a career. Harvey Weinstein is a 64 year old, world famous man and this is his company. The balance of power is me: 0, Harvey Weinstein: 10.[2]
The power imbalance made it nearly impossible for women to refuse his advances, but even with over 87 victims over the course of twenty years, the scandal was only uncovered in 2017, all because NDAs silenced them before they even understood what happened to them. While the original exposé referenced a “young female employee” describing that “a nondisclosure agreement prevented her from commenting,” the widespread nature of these agreements was only exposed a few months later, finding that dozens of these women were coerced into signing NDAs in an effort to protect Weinstein.[3] Threatened with indefinite trials and the possibility of people not believing them compounded by a looming power balance, the women who were offered NDAs never truly had autonomy in their decision to sign the agreements.
This deteriorated autonomy impacts women of color the most, and especially considering that they are more likely to be assaulted, recognizing their perspective is beyond important. Particularly haunting are the words of Filipina-Italian model Ambra Battilana Gutierrez, yet another one of Weinstein’s victims:
I didn’t even understand what I was doing with those papers…I was really disoriented. My English was very bad. All of the words in that agreement were super difficult to understand.[4]
Gutierrez signed away her voice and her story without even knowing it, and while Weinstein was the criminal, NDAs were the cruel weapon that enabled this possibility. These agreements precluded victims “not only … from talking about Weinstein’s behavior, but also about [their] entire career at Miramax,” making it functionally impossible to connect any sort of assault to Weinstein or the company.[5] If even one of these women had the legal means and empowerment to expose Weinstein’s despicable actions, perhaps dozens more would have been protected. Without people’s ability to tell their stories, progress in social justice is virtually impossible because we fail to recognize that oppression is even happening. By virtue of his position in society as a powerful White male, Weinstein was already empowered to steal Guiterrez’s choice, but NDAs empowered him to trap her story of subjugation in a body unable to speak.
Following the Weinstein trial and many other instances of such abuse, beginning 2023, United States federal law officially prohibits the use of non-disclosure agreements in sexual assault cases. Unfortunately, many other countries have failed to follow suit. The United Kingdom Parliament recently struck down a request to ban NDAs in harassment, and Australia’s overuse of the agreements in recent years has persisted, despite continued criticism.[6]
In fact, in Australia, the statistics speak for themselves: a survey conducted by The University of Sydney found that 75% of legal practitioners have never resolved a sexual harassment case without an NDA, and 50% have never advised a client to decline an NDA. What does it say about a society when weaponized silence is normalized? It tells us that the established power structures — structures by nature rooted in patriarchy — inherently fail to protect its most common victims: women. As Fordham professor Julia Suk explains, “it [is] ... helpful to think of misogyny as existing even if there are no misogynists,” because even if those in power do not have an express desire to harm women, we still have an ingrained, “legal structure that we could describe as misogyny because the hatred, violence, discrimination, and hostility towards women” is undeniable.[7]
Advocates of NDAs as a means to empower women rather than subjugate them argue that women who do not wish to speak out deserve the choice to receive alternative compensation. There is one key issue with this argument: signing non-disclosure agreements is often positioned as a choice, but in reality, the circumstances surrounding them are incredibly detrimental to any real autonomy. Autonomy is limited in a few different ways:
1) Women of color are more likely to be targeted in sexual assault cases, and considering that vulnerable populations are easier to exploit, they often lack the resources (both financially and language-wise) to accurately interpret the documents with which they are presented. Lack of accurate legal counsel and language barriers fundamentally impair this illusory choice — how is a woman making a choice if she does not understand the choice she is making?
2) The women making these decisions have just experienced a massively traumatic experience and are forced into signing these documents within a matter of days or weeks. Without the time to process their experiences fully, these decisions are made under terrible circumstances, and despite potentially regretting the decision in the future, they can never reverse the damage of their signature on a paper they did not understand.
3) The people developing these agreements are often from enormous companies, like Harvey Weinstein at Miramax, and the prospect of fighting against them alone in a legal battle is beyond daunting. Even if a woman was to acquire adequate legal counsel, they would likely advise her to sign the agreement purely because they are likely to lose the settlement. Although multiple women joining together would make winning the case more likely, these agreements prevent victims from ever connecting with and finding solidarity with one another.
Trauma is a stain on autonomy, and insofar as our autonomy informs our sense of identity, women’s ability to reclaim their voices following such tragedies can be critically healing for them, empowering future women and preventing them from experiencing the same pain in the future. With our advocacy, perhaps a new generation of women in Australia or the United Kingdom may finally have the tools to speak out against their assaulters. They will reclaim their voices as part of a legal system that truly helps those it claims to protect. Until this narrative is true for women across the world, women continue to be silenced, and each woman’s suffering echoes for generations.
Although legal conversations often appear to be dense, academized, and generally inaccessible, taking the time to parse through the language and decipher the systems around us is important, and it is inherently feminist. Robbed of such language, we cannot advocate for ourselves and others, and we cannot dismantle generations of oppression.
The stories of these women — these 87 women Harvey Weinstein assaulted — have faded since their exposure in 2017. While we should allow time to let us heal, we should never allow it to let us forget past atrocities. These women were tormented in their silence, and as injustice persists half a decade later, it is our responsibility to ensure that the lessons of their courage remain.
The unfortunate reality is this: we exist in a power structure where women are inherently discredited, mocked for their emotion, and often ignored despite their desperation. To allow a legal structure to reinforce these narratives rather than dismantle them is an unacceptable, tragic atrocity.
Citations
[1] Henry Zwartz, “Widespread use of non-disclosure agreements in Australia is 'protecting serial predators,'” UNSW Sydney, last modified August 19, 2022, https://www.unsw.edu.au/newsroom/news/2022/08/widespread-use-of-non-disclosure-agreements-in-australia-is--pro.
[2] Jodi Kantor and Meghan Twohey, “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades,” The New York Times, last modified October 5, 2017, https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html.
[3] Kantor and Twohey, “Harvey Weinstein Paid Off Sexual Harassment.”
[4] Ronan Farrow, “Harvey Weinstein’s Secret Settlements,” The New Yorker, last modified November 21, 2017, https://www.newyorker.com/news/news-desk/harvey-weinsteins-secret-settlements
[5] Zelda Perkins, “An NDA from Harvey Weinstein cost me my career – at last, banning them feels within reach,” The Guardian, last modified December 15, 2022, https://www.theguardian.com/commentisfree/2022/dec/15/nda-harvey-weinstein-confidentiality-clause-abuse
[6] “Government refuses to ban non-disclosure agreements in all harassment cases,” UK Parliament, last modified May 14, 2024, https://committees.parliament.uk/committee/158/treasury-committee/news/201427/government-refuses-to-ban-nondisclosure-agreements-in-all-harassment-cases/; “Overuse of NDAs in sexual harassment cases in Australian workplaces,” The University of Sydney, last modified March 6, 2024, https://www.sydney.edu.au/news-opinion/news/2024/03/06/overuse-of-ndas-in-sexual-harassment-cases-in-australian-workpla.html.
[7] “How The Law Fails Women and What To Do About It,” Current Affairs, last modified December 14, 2023, https://www.currentaffairs.org/news/2023/12/how-the-law-fails-women-and-what-to-do-about-it.
Comments