When the law lets abusers buy victims’ silence

Non-disclosure agreements too often shield the powerful, says Jess Phillips.

For decades, I have worked with women and children who were silenced by an aggressor. Each case of domestic or sexual violence I have seen has differing details, but they are depressingly similar at the roots. It is always about power and control: a perpetrator trying to control the actions, movements, relationships of their prey.

Be it the grooming gangs in Rotherham or the suburban domestic abuser, the perpetrator uses techniques to keep his victims silent. He delegitimizes their voices; he tells them they will never be believed; he threatens their financial security; tells them he will have their children removed or have them deported if they speak up. He says he will reveal to their peers or family their darkest, most shameful secrets.

Silence and secrets are dangerous tools of the powerful, and we have spent decades trying to break these bonds. We have written laws about coercive control; changed our courts to allow the fearful to give testimony; we’ve set up helplines and safe spaces.

Our institutions must never collude with those who seek to control the vulnerable, and yet they so often do.

The story of the British businessman — named in the U.K. Parliament as Sir Philip Green — who has used non-disclosure agreements (NDAs) to stifle allegations of harassment is not a new issue.

The emails I receive every day tell me that all over the country, and in fact the world, there are people who have tried to speak up about abuses at work and were left with no choice but to agree to leave silently with a payoff. It’s not all about groping bosses, although they are the majority of stories I hear. It is also people who blow the whistle on bullying and fraud, and many women forced out when pregnant.

The practice of using NDAs is commonplace. It is often a condition of a payment to a person to make them and their complaint go away. Many people think that if you agree to take the money you don’t have a right to moan. This would be reasonable if we were talking about a dispute between two parties with equal power and money. If you are a waitress and the CEO of the restaurant chain where you work thinks he can cop a feel, or an administrator at a corporate giant where the director thinks your job is to take a verbal battering every morning, what hope have you got to see your complaint through in court?

Usually, the employee quits without ever saying anything. Those who do try to fight back quickly discover that they cannot win: both parties need to pay their bills, and they could never afford to take on the other side’s lawyers. So they take the money, and it feels like a small victory. To the employer, it was peanuts paid to allow them to carry on regardless.

The only tool the little person has in these cases is their voice. In the era of #MeToo and social media, the testimony of the abused is like napalm. The powerful know this, and so in a last-ditch effort to exert control, they remove your only weapon.

NDAs have their place. They can lead to compromise and reasonable settlement. But they should never be used to allow the rich and powerful to abuse their staff and get away with it.

In the case of the businessman, I was flabbergasted by the judgment of the Court Of Appeal that silence has been legitimately bought — as if abuse, control and illegal working practices can be played with like Monopoly money.

I know how dangerous silence is. I have seen its cancerous effects. Our laws must never be used to force silence on the abused.

So long as they do, I am not sure how any of us are supposed to respect them.