Is the non-disclosure agreement (NDA) a metaphor for the way cultures go wrong?

The Harvey Weinstein trial has been in the news, and one of the talking points which emerges is the way in which rich and powerful perpetrators of abuse are able to silence their accusers by paying them to sign agreements which could prevent them from complaining or taking legal action at a later date.

To be as clear as we can about these agreements, you cannot be forced to sign one (legally), and in law it is a contract, meaning that the two parties to the contract have specified some area or areas of information or experience which will be kept confidential between them, and it specifies the time period they will cover. A lifetime contract would be unusual - five or ten years would be normal. You don't have to be paid to sign it - in abuse cases, payment is sometimes offered as an inducement to sign. If there is concern about reputation or scandal, some perpetrators are prepared to pay a lot.

What happens if you breach the contract? This is not a criminal office, which would be tried in a criminal court. It is a civil offence, which means you can be sued for damages. This would be a civil court action in which the signatory, who feels wronged, has to specify in what way he or she has been damaged by the disclosure.This is of course not always easy to prove. And it may be damaging in precisely the way the agreement was intended to prevent, namely, by disclosing all the circumstance leading to the contract and breach! Some of us may think that in the case of Harvey Weinstein (and other offenders) it might be easier not to commit the offence in the first place!

However, the whole issue of NDAs raises wider concerns. Researching this subject, I was struck by how difficult it was for some explanations to admit that the agreement is nothing like as powerful as presented. I felt some were written by lawyers who did not want anybody to get the idea that a lucrative part of their work is not very useful, in fact! They were eager to stress that you could go to jail if in breach. But this is not exactly the case. You could go to jail if you failed to pay damages awarded by a court as a result of a breach being proved. Question: is it very likely that Joan Smith, when sued by Harvey Weinstein for shall we say a million dollars for breach of contract, can actually pay him that money? Money, by the way, that he already has in spades? He didn't want the money, he wanted the silence! And what satisfaction would he have gained by sending her to jail as a result, when in fact she had disclosed everything surround the breach before she went? Given that the subject of the contract is illegal in the first place, namely sexual abuse?

It seems that the whole practice is full of loopholes and rests largely on the capacity to frighten the signer - the word for which is intimidation. Questions are now being legitimately raised as to whether it is desirable that a well-to-do perpetrator of any activity which is against the law should be able to pay to keep that activity secret? Justice is not justice if you can legally buy your way out of being found guilty of a crime, surely? Do I live in Alice in Wonderland after all, I ask myself? In that case, why don't we allow murderers to make a witness to the killing sign an NDA so they will not be found out? Or house-breakers, or fly tippers for that matter? The answer seems to be that sexual activity without consent of many kinds is viewed differently - it is in a different category from all other crimes, in the minds of society. It's a crime in theory. There is doubt about that in practice. Why is this so? This is what I will call Minefield Number One.

A related Minefield - Minefield Number Two - relates to the question of evidence. While the justice system proceeds on the theory that we are all innocent until proved guilty, crimes of sexual activity without consent - abuse, in short - are often very difficult to prove because they do not have the same sources of evidence as a routine matter like house breaking, where there might be fingerprints or dna evidence, or actual goods stolen that have been recovered and so forth. When my house was burgled a few years ago, the police spent considerable time and personnel dusting for fingerprints, taking statements, running things through computers and the like, and correspondence afterwards about the process of investigation. I was offered victim support counselling and even some free equipment that might make my windows safer in future. (Well, yes, that was before the Civil War, but nevertheless .... ) Nobody said to me, "I don't believe you were burgled. You're making it up!" But had I been reporting a rape or attempted rape, that might have been what the officers were thinking even if they didn't say so.  And if - as too often happens - I was reporting something that took place years ago, my case could rest entirely on my word and not much else. Then of course power comes into play, because the more significant a citizen seems to be, and the more likely it is - I imagine - that their word is seen as valid. Interpret 'significant' any way you like, to cover those distinguishing marks that make some people more important than others. To you. To other inhabitants of this Wonderland of ours. Question:  is it sufficient to convict someone on the grounds of the word of another person alone? Given that it represents an important shift in the way the law has been interpreted and practiced in the past. In the case of rape, your word could be your sole evidence.

In the case of Minefield One, it seems to me that some types of NDA should clearly be banned, if they are being used to cover up any matter which would represent a breach of the law if it were known. I cannot see any argument against this, and whether you think sexual abuse is different or not makes no difference. The law is the law, unless it intends to turn itself into the law of Mr Bumble's description:

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass — a idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”

I cannot but agree with him. It is absurd to be able to get away with something that is otherwise against the law by using the law against itself. These are reforms we can make, and ought to. But also, intimidating a witness is surely against the law too?

Such offences go to the heart of the administration of justice. If there is sufficient evidence of witness intimidation the public interest requires that normally such cases should be prosecuted

says the Crown Prosecution Service grandly.  So let them apply some pressure where it counts to make sure that victims of such abuse are not intimidated into signing agreements not in their interest, which in fact are contrary both in letter and spirit to the way the law works. Women too often sign these NDA's because they have been intimidated into doing so.  Even after the high profile cases of Weinstein and Epstein, many women remain unconvinced that it is safe to breach a non-disclosure agreement. Don't take my word for it, I'm not a lawyer - but have some good questions like these ready when you consult your solicitor on this matter!

“It was all Mrs. Bumble. She would do it," urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.

Dickens captures the spirit of low level intimidation all too skilfully. Like Adam, Mr Bumble persuades himself that it was all Eve's fault! And is too frightened to say so - wheels within wheels here! Women are frightened of men - but men are frightened of women too! Is it about time we all got out of the playpen and started telling things like they are? Relationships built on intimidation and fear of disclosure are like the famous houses built on sand. Where is your treasure, in reality? Is it a myth of a treasure, a fixed belief in a love that does not actually exist, in which we all to a degree collude in an intimidatory world, where the powerful lay down the rules about what is ok and not ok, either to say or to do? And where, if only we spoke truth, we might find there is very little love where we felt sure a lot existed? If so, we have a much bigger problem than hidden sexual abuse in this society. Or put it another way: the revelations of the past decade, of a hidden pandemic of sexual abuse, symbolise something even more widespread in the culture, which is the fixed belief that everything is ok so long as we are careful to look the other way ...

But Minefield Two is not as easy to sort out. It is the question of the importance of evidence. I am conflicted about this, because I believe in the importance of evidence. The whole of the UK was obsessed with its Civil War around Brexit for three or four years. Much of that War centred on the difficult question of whom we should believe, when it came to the risks and advantages of leaving the EU. Some people felt entirely free to dismiss the evidence put forward by various bodies about what the likely outcome of leaving might be.  Evidence that seemed to contradict their opinion was obviously wrong, and that was that. And even if it was right, it didn't matter. Vainly, others tried to centre their arguments around evidence, but found they received short shrift. We learned the hard way what psychologists have told us for long enough, that men and women are nothing like as rational animals as they like to claim, where arguments are used as weapons, and there is a basic lack of belief that the person on the other side of the argument could possibly be telling you the truth. It didn't matter what you knew, what mattered was what you believed.

My own dismay was around that attitude, as much as around the ultimate question. I like to think that the law is the last bastion of faith in truth and reality! Call me an idiot, but that's what I think. We humans have a hard enough time as it is in distinguishing one reality from another, so I dreaded entering a world where belief in truth, reality, and the evidence supporting these things, no longer mattered. This would be a world given over entirely to power, to the significance of the individual compared to the significance of the mob. To the loudest voice, with the money to shout from the rooftops. I have never been a cynic, and don't plan to start now.

So I will give up the need for evidence of sexual abuse only with great difficulty. Obviously (to me) we can't have a law that assumes a man is guilty of rape because a woman says so. I foresaw that that idea would bite the dust, and it did, so easily, at the time of Carl Beech's arrest, who was charged with perverting the course of justice when he claimed to have been a victim of multiple rapes. 'Believe everyone' is no wiser than 'believe nobody.' Neither stance is useful in getting to the bottom of what 'really' happened in such cases. Both ask us to give up our natural human instincts for judgement and appraisal of others. I am not talking about 'I don't like the look of him' type of judgement. I am talking about 'knowing' in a broader sense than that - where we have spent some time in the company of another human being, have heard them talk, about others and themselves, exchanged opinions, seen day to day social behaviour and the like. On bases like these, we make judgements which are frequently right. This is the best argument I know for not jumping into bed with the first person who asks you. An argument for the importance of interviewing for jobs - not assuming that some tick box exercise will tell you all you need to know, or that paper qualifications are everything. It won't and they aren't. If the police are to believe everyone who accuses someone, are they not being asked to give up their usual investigative procedures and interviewing techniques altogether? Yes, these are not certain indicators by a long chalk. But they go some way towards a fair justice system, where evidence and weight of character are both factors in deciding whether to charge or not. Be clear: there is no certain way of knowing whether someone could or would commit any crime. I tend to err on the side of scepticism about all such knowing, having experienced the complexity of human psychology. But 'we all have shadow' does not mean we are nothing but shadow! We cannot safely apply our own particular experience to every other person who comes along. This is traumatised behavior, it is not rational or adult. So we will need evidence, it seems to me, to back up the account of the victim.

My conclusion also is that sheer weight of opinion has a part to play. Being accused by one person is not always evidence enough. But being accused by many -  a dozen, a hundred - suggests there is a serious issue here worth investigating! Unless you choose to remain constitutionally blind to reality. The me-too movement helped in this respect, in encouraging enough victims to come forward to make someone finally notice there was a problem! This is evidence, of a kind. But not all rapists are multiple offenders. And not a few are married to the victim, where there is a presumption that any old behavior is ok because it is between husband and wife. The lone victim will always have a problem. All I can say is that it would help us all in our quest for a more sane and lawful society if these victims could find it in their hearts to complain sooner. And society can help here - we can insist on better sex education, so that girls as well as boys do not have to find out by ill judged experimentation  that some boys are not to be trusted. And where they can be brought up with an idea that complaining is ok in the first place! I doubt that many children are going to learn this from their parents, where their chief concerns is to keep all such experimentation as dark as possible!

A big attitude change all round is my favourite request. In the long run, we have to stop being a non-disclosure culture, where anxiety about what the neighbours will think guides our every move, and where we cannot even raise our voice in a restaurant without being accused of bringing shame on the family! We have lived too long in a world where 'we don't say this' and 'we can't say that.' Let's all say it out loud - publish and be damned!