Civil Litigation

Sweeping 'gag orders' rarely appropriate in sex abuse cases: Grace

By Kirsten McMahon, AdvocateDaily.com Managing Editor

While there can be some benefits to non-disclosure agreements (NDAs) in sexual abuse cases, they can also be “troubling and problematic,” Toronto civil sexual abuse lawyer Elizabeth Grace tells Global News.

Grace, partner with Lerners LLP, makes her comments in connection with news that New Jersey signed into law a bill prohibiting and rendering unenforceable NDAs in employment contracts or settlement agreements that conceal details of discrimination, retaliation or harassment claims.

“NDAs or 'gag orders,' as they’re sometimes called, have been lambasted in the #MeToo era, thanks in part to high-profile cases like those of Larry Nassar — the imprisoned sports doctor who sexually abused more than 200 women and girls who had come to him for treatment — and Harvey Weinstein, a disgraced film producer,” the news outlet reports.

California limited the use of NDAs in 2018, while the United Kingdom said it would bring in legal measures to protect workers from the misuse of these agreements, and there’s no shortage of advocates in Canada pressing for similar reform, the article states.

Grace, who works with both plaintiffs and defendants, tells Global News there is a whole history of people being muzzled in Canada.

“Churches, and the Catholic Church, in particular, used to be very aggressive in stifling and silencing,” she says.

But in 25 years of handling such cases, Grace says negotiating the confidentiality aspects of settlements has generally become less problematic.

“Now, people who are being sued, especially institutions, are more careful about insisting on these sweeping 'gag orders,'” she tells Global News.

“It can come back to bite them.”

She attributes that reluctance to exposure — backlash when the media reveals the existence of such agreements and, more recently, #MeToo publicity making the issue hard to avoid. That’s good, she tells the news outlet, because while there are some benefits to NDAs, they can also be “troubling and problematic.”

Grace says it’s not only an issue of freedom of speech, but it’s a question of public interest, especially in cases involving widespread sexual abuse in powerful institutions like the Catholic Church, where ‘gag orders’ kept victims who settled out of court quiet and did a disservice to society.

In an interview with AdvocateDaily.com, she explains it is the “scope” of the confidentiality or non-disclosure that is important. What is most troubling are, what she calls, “sweeping confidentiality clauses," which she notes used to be much more common. These, Grace says, are where victims are, as a condition of settlement, prevented from talking about the abuse they suffered and its impact on them.

Such a broad prohibition is rarely appropriate. According to Grace, it “reinforces the problematic notion that what happened is shameful and something to be kept secret." Further, it “takes control away from the person who was abused and who already suffered a profound loss of control." In Grace’s experience, few victims actually want to talk about the details of what happened to them, but whether they do so or not, should be up to them, she says.

She explains it is the sweeping kinds of non-disclosure terms that are colloquially described as ‘gag orders’ — which are not ‘orders’ in the technical sense of a court ordering someone not to talk about what happened to them. It is “almost inconceivable” that a court would order a person found to have been sexually abused not to talk about what happened to them, says Grace.

"When people or the media refer to ‘gag orders,' they are usually referring to terms that are negotiated as part of settlement agreements, often in a context of a power imbalance," she says.

Grace stresses that confidentiality clauses that are narrower in scope and confined to keeping the fact and terms of settlement confidential are usually a positive and necessary requirement that serves the interests of both defendants and plaintiffs.

“Preventing someone from disclosing the terms of settlement, including how much compensation they have received, is generally reasonable,” she tells the legal newswire.

“This is an area where lawyers for both sides need to be open-minded, realistic and sometimes creative, and they need to advise their clients accordingly so they can make informed and constructive decisions in the spirit of compromise, which is the essence of a good settlement," Grace says.

She says she routinely builds exceptions into confidentiality clauses to allow plaintiffs to speak freely with family members and therapists. In addition, Grace sometimes includes “mutuality” clauses that impose a requirement that the defendant not “speak ill” of the plaintiff in return for her not doing likewise.

Grace favours legislators in Canada doing what some U.S. states and the United Kingdom are doing — taking a hard look at the actual misuse and potential for misuse of confidentiality or NDAs in sexual assault and harassment cases, and legislating against this. She cautions, however, that this will have to be done carefully as there are countervailing considerations and arguments that will need to be taken into account.

“It cannot be a case of one size fits all," Grace says.

“It is rarely in anyone’s interest to litigate these kinds of cases in court so the last thing one wants to do through legislation is discourage negotiations and settlements that resolve these cases," she says. Grace notes that in Ontario the Apology Act, which encourages parties to acknowledge and apologize without negative legal repercussions, serves as an example of where a government has intervened and legislated for positive change.

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