Move to stop weaponizing NDAS
Province silences victims by failing to address misuse
Nova Scotia Justice Minister Brad Johns offered no explanation or justification when he said recently that “I don’t support NDAS being used as a method to silence victims, but at the same time we’re just not moving forward with it right now.”
The evidence is clear that non-disclosure agreements are routinely used as a tool to silence survivors of sexual abuse and harassment. If the government genuinely does not support the use of this draconian measure, they must follow the lead of other provinces and take immediate steps to support legislation that will end their misuse.
While NDAS can serve important functions in the commercial context, they have frequently been misused when settling cases of sexualized violence. Typically, NDAS permanently prevent survivors from speaking out about their abuse. Because of this, they also prevent survivors from seeking support from loved ones, their community and professionals. NDAS also allow institutions to insulate serial perpetrators and privilege their public reputation over preventing further sexual harm.
NDAS are misused in a variety of ways. They are relied upon in negotiating settlements to incentivize survivors who may want an expedited resolution but do not understand the long-term consequences of the agreement. Organizations have also required complainants to sign NDAS before agreeing to open an investigation.
The use of NDAS as a legal incentive to cover up misconduct takes advantage of the vulnerable position survivors are often in, not only as victims of abuse but as individuals seeking justice in a complex legal system.
RECENT PLEDGES
Signalling a growing movement to ensure NDAS are not misused in the wake of the government’s inaction, Acadia University and the University of King’s College recently signed a pledge not to use them in these circumstances, and the Nova Scotia Federation of Labour voted unanimously to end their misuse.
Though it is an important step for individual institutions to make these types of pledges, it will take a united effort to see a true shift in the culture surrounding non-disclosure agreements, a united effort of which the provincial government must be a part.
Survivors face so many barriers that prevent them from coming forward and prevent them from healing. One of these barriers is the retraumatization that survivors experience following their assault. Kathleen Finlay, an advocate against these types of NDAS, says, “When victims reach out to me, they frequently describe the impact of their NDA by using language that mirrors the violence of their attack. (They use) terms like ‘choking,’ ‘smothering,’ ‘gagging’ and ‘suffocating.’”
This silencing causes harm not only to the survivor but may pose serious concern for the public. When sexual assault survivors are silenced, abuse is likely to go unchecked and violence permitted to continue. This is of particular concern given how prevalent sexualized violence is in our society.
In addition, widespread silence serves to increase the fear and stigma associated with coming forward. This fear and stigma prevents the important social and institutional changes necessary to further our efforts to decrease rates of sexualized violence.
MOVEMENTS GATHER MOMENTUM
Researchers at Yale University found that the #Metoo movement has led to increased rates of reporting. #Metoo has also created a community of support among survivors inspired to share their stories. NDAS, when misused, create an absolute barrier to participation in these types of movements.
With strong evidence confirming that NDAS silence survivors and with law reform well underway in other Canadian provinces and in the United States, it is critical that the Nova Scotia government join the movement to protect survivors by restricting their use.
The government does not need to create an outright ban on NDAS. With proper restrictions, NDAS can be used in limited circumstances in ways that protect survivors, prevent abuse of power and avoid insulating perpetrators and institutions.
Prince Edward Island’s Non-disclosure Agreement Act allows survivors to enter into these agreements if, among other requirements, they have had the chance to seek out legal advice and have not been pressured into entering the agreement. Ontario has moved to introduce similar legislation following the passing of Bill 26, which restricted the use of NDAS in the post-secondary environment. This approach would allow survivors to maintain their personal agency by permitting them the opportunity to sign an NDA, while ensuring that employers and organizations cannot protect abusers at the survivor’s and the public’s expense.
Sexual assault and harassment in Canada is a pervasive issue. Statistics suggest that about 4.7 million Canadian women have been sexually assaulted since the age of 15, and members of vulnerable communities are even more likely to be victimized. The Nova Scotia government’s wilful inaction speaks loud and clear, especially when all signs point toward a necessary and critical change.
While it is long overdue that our elected officials step up and ensure that NDAS can no longer be weaponized against survivors, the next best time is now.