If an adult man does not know yet that we live in a sexist world, he has not fully lived...
Every single woman who decides to be a stay-home-partner, a single mother, a professional, a working mother knows that the world we live in is not equal. It should be, but it is not. Not yet.Female voices need to be heard. More than they have been heard already. And choices need to be made available to them. Is a victim who stays in the shadows less of a victim, because she is not willing to go public? Not at all. Are the people who sexually harassed, sexually assaulted, or acted in any other inappropriate way and remain in the shadows any less guilty that those who are convicted or found liable in a court of law? Not at all.
BESIDES GOING PUBLIC, WHAT ELSE IS THERE?
People are fairly familiar with Non-Disclosure Agreements and the title speaks for itself: “you work for us, and you cannot disclose how we make our pies with anyone”, “you are resigning, and taking a payment from us, but you shall not discuss any of the details surrounding your resignation, or how many times we breached your rights” and so forth. A Confidentiality Agreement is very similar to a Non-Disclosure Agreement. Some argue that there is no difference between the two.
In essence whether you are the victimized party, or the one who committed the harmful acts, sometimes you have the choice to stay in the shadows and yet deal with the matter. There is no question that some of the ‘out of court’ settlements, or ‘gag orders’ have been excessive: an amount of money is exchanged that could never be obtained through a court; several victims of the same abuser roped in to sign Agreements to stay quiet; people pressured or forced to sign Agreements, which if tested, would fail in court. An Agreement is a contract between two persons. The parties entering into an Agreement can pretty much agree to anything, but if it is not reasonable, fair, or pressure was put upon a party, the contract is no longer binding. This is where lawyers, in my opinion, have a duty to ensure that Confidentiality Agreements do not breach a person’s freedom of speech, or the right to heal and get help while doing so.
If you are entertaining an Agreement of this sort, ensure that you have a lawyer who knows the laws relating to sexual assault, sexual harassment, and inappropriate sexual conduct. I have prosecuted sexual assaults, harassment, and other related matters since June of 2000 as Crown Counsel for the Province (prosecutor). I have dealt with hundreds of victims. Some of the persons I prosecuted were convicted, some plead guilty, and some were acquitted (for many different reasons). One of the aspects of prosecuting is that, at times, by forcing persons to take the stand and face the accused, we re-traumatize the victims and witnesses. We are forcing them to talk about the harm again. Usually, after a victim speaks to the police twice or more times, then meet with the Crown more than once. And it is not over yet. S/he then has to tell what happened in court! She then experiences the painful experience of having her credibility tested, through cross-examination. It is not the best system, but it is what we have.
In a civil sphere, victims also have to testify before a court and subject to cross-examination. The main difference between the criminal and the civil courts is that the burden of proof is much lower in a civil court. What this means is that is it easier to have someone found liable, than it is to have someone found guilty beyond a reasonable doubt. The other main difference is that a victim in criminal court does not get awarded damages for pain, suffering, loss income and so forth, whereas in civil court damages are regularly awarded when someone is found liable.
Confidentiality clauses, out of court settlements, are an accepted part of a settlement package in our civil justice system and every indication is that they are here to stay.
Understandably, the media is an attacker of confidentiality type agreements. The media wants to tell us about high profile abusers, or high profile institutions that sweep abuse under the rug. Many people, including lawyers and victims, are also against Confidentiality Agreements for many different reasons. Confidentiality Agreements impede plaintiff lawyers and their clients’ ability to find out about other instances of abuse which would strengthen the evidence and the claims for compensation.
Personally, and professionally, I am a feminist. Women are equal to men; women are able to do whatever a man is able to do. And, I am a believer in Confidentiality Agreements. Let me tell you why:Both parties have a say, both have needs that can be met through the Agreement, both walk away feeling heard, consulted with, and they know they are the main players, not the lawyers, not a judge, and definitely not the public. When an out-of-court settlement is achieved, it is a legally binding contract and benefit flows for both parties. A victim will get certainty, finality, closure, and an ability to move forward. And, receive compensation for the injuries and harm they have suffered.
The abuser also derives benefits from a Confidentiality Agreement, otherwise, they would never enter into one. In exchange for making a payment to resolve, they gain certainty. And, they avoid the continuation of an otherwise expensive and uncertain legal process. More importantly, they protect their families and their reputation. Personally, I quite enjoy the satisfaction victims get from the fact that they do not have to tell how much they received, they do not have to deal with certain types who fake friendship in order to receive monetary gain, and they will not be questioned about the details surrounding a sexual assault.
The person who is paying is exposed through the victim and through the lawyers working in the case. She or he is shamed through the discussions and acknowledgement of harm done. The abuser’s fears and weaknesses come through very clearly: ‘what if my colleagues/spouse/family find out..? My career and personal life will be completely destroyed’. ‘I am really sorry for what I did’. ‘I want to help the person get better’. ‘I want that person to know that I am a different person today’.
One principle I put in place, regardless of which side retains my services as counsel: is that, as my client, you shall not refer to the other person involved in a pejorative manner. It gives the client, and the other party, the knowledge that both are being respected. Both have a voice. I can easily argue that it gives the victim a stronger voice than being questioned and cross-examined in a public setting. Often victims do not want to discuss their trauma, the abuse itself, or their personal circumstances.
The abusers are generally people who have been bullied, or have been bullying since they were young. They got away with it. They know how to choose their victims. They know how to convince people that their ‘ways’ are ok. They enjoy their status, usually as dominating males, in a male dominated society – not something they have to work at; it’s there. They are professionals, and they are uneducated. Education per se means nothing in terms of whether someone will be abusive or not; they are average men in most cases. A boyfriend, a co-worker, a guy you dated in the past, and so forth. They cause harm. That harm can be addressed with a Confidentiality Agreement.
Finally, never forget that innocent people ALSO get accused of committing crimes, including sexual-related crimes. Imagine being innocent and facing the accusation that you abused someone. The reverse is true: some factually guilty parties walk out of a courtroom referring to their verdict of acquittal (not guilty beyond a reasonable doubt) as an official stamp, an endorsement of their claim that the victim was lying and that they are innocent. Confidentiality Agreements are necessary and will continue to play a role in our society. Lawyers must be vigilant that these Agreements are fair, humane, and legally binding.
M. Elizabete Costa, a private lawyer with Costa Law. Former Crown Counsel.