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Are Lawyers Perpetuating A Culture Of Silence Surrounding Sexual Assault?

Lawyers use the objective structures of the law to cultivate a cone of silence around powerful figures.

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Harvey Weinstein (Photo by Drew Angerer/Getty Images)

Zelda Perkins, a former personal assistant to Harvey Weinstein, has broken her contractual obligations under a non-disclosure agreement to tell the Financial Times the details of what she witnessed and experienced while in his employ. This isn’t some accidental or inadvertent breach of a complex document. It is an extraordinarily deliberate decision made by a self-possessed and motivated woman. As she says in the FT interview:

I want to publicly break my non-disclosure agreement. Unless somebody does this there won’t be a debate about how egregious these agreements are and the amount of duress that victims are put under. My entire world fell in because I thought the law was there to protect those who abided by it. I discovered that it had nothing to do with right and wrong and everything to do with money and power.

Perkins reveals that, as Weinstein’s assistant she dealt with a boss that exposed himself to her, asked her to watch him bathe and give him massages. And it wasn’t an isolated instance:

This was his behavior on every occasion I was alone with him. I often had to wake him up in the hotel in the mornings and he would try to pull me into bed.

But that wasn’t enough to get Perkins to pursue action against Weinstein. She alleges in the interview that it was the assault of a co-worker in Venice that pushed her to take action:

She was white as a sheet and shaking and in a very bad emotional state. She told me something terrible had happened. She was in shock and crying and finding it very hard to talk. I was furious, deeply upset and very shocked. I said: ‘We need to go to the police’ but she was too distressed. Neither of us knew what to do in a foreign environment.

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A representative of Weinstein denied this specific allegation:

The FT did not provide the identity of any individuals making these assertions. Any allegations of non-consensual sex are unequivocally denied by Mr Weinstein. Mr Weinstein has further confirmed that there were never any acts of retaliation against any women for refusing his advances.

From there, Perkins and her colleague got a lawyer from the U.K. firm Simons Muirhead & Burton. They entered into a negotiation with Weinstein’s attorney, Mark Mansell of Allen & Overy. They reached an agreement whereby the women would split £250,000, if they agreed to the NDA and to limit their participation in any investigation into Weinstein. FT also reports they were required to contact Mansell should they be compelled to provide evidence in “any criminal legal process” involving Weinstein or his company, Miramax.

Now, lawyers are quite used to being unpopular figures. Some of the noblest work of the profession involves defending true criminals in a court of law.  And ensuring that the system treats the accused — as well as the guilty — by the standards enshrined in the Constitution is important work. But in this case, Weinstein was trying to avoid all public discussion about his behavior, and the NDA served as legal glue to ensure the status quo — one where he expected assistants to watch him bathe — continued with only a minor (for him) monetary penalty.

And what about the lawyers at A&O or any number of other solid, reputable law firms that could have been tasked with doing this job? They didn’t do anything we don’t expect all good, competent lawyers to do. They acted well within the confines of the law to generate a result in the best interests of their client. We can’t all be Gloria Allred, who has the luxury of her own practice that she’s used to pursue her own vision of social justice — hell, even her daughter, Lisa Bloom had a hard time living up to that standard (though she quickly corrected course). But what happens when the tools we are trained to deploy are used to further a societal harm?

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Of course that isn’t to say there are no good uses for NDAs. Celebrities have a right to know the nanny they hire isn’t going to sell unflattering pictures of them or their children to the highest bidder. And companies use them to get closure over nuisance claims, which is a reasonable way to deploy the agreements. But let’s learn something from Harvey Weinstein, and Bill Cosby, and Bill O’Reilly, and Roger Ailes, and the proliferation of #metoo stories. Predators use silence to their advantage, they depend on the only weapon against them to be whispers to get their next victim. And good lawyers have been an accessory to creating this culture by exploiting legal tools to cultivate a cone of silence around powerful figures.

It’s a tricky predicament the legal profession finds itself in. There is certainly no rule that was broken in procuring an NDA on behalf of Miramax and Weinstein. But perhaps, if we finally see that something is broken in society, the legal community can be a part of fixing it.

headshotKathryn Rubino is an editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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