Women's Issues

Harvey Weinstein And The Cost Of Silence

Our civil tort system, for all of its strengths, has its weaknesses and failings.

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Harvey Weinstein (Photo by Drew Angerer/Getty Images)

For all the terrible news stories that have broken in 2017, at least one recurring item is cause for hope. Another massively powerful alleged serial sexual abuser has been brought down by his victims coming forward and speaking about the trauma they suffered.

The latest media titan to fall is legendary film producer Harvey Weinstein. The New York Times broke the story that Weinstein had been paying off the victims of his alleged sexual harassment for decades. At least eight formal settlements have been executed, and internal memoranda within the Weinstein Company depicted it as “a toxic environment for women[.]” In the wake of this blockbuster reporting, more than 30 women have come forward to tell their own stories of alleged abuse at Weinstein’s hands. The power of these voices coming together has shaken the foundations of Hollywood. Weinstein, one of the most powerful men in entertainment, was promptly fired from the company he founded and became only the second person ever to be expelled from the Academy of Motion Picture Arts and Sciences.

The story of Weinstein’s fall is becoming a familiar one. Other media titans such as Bill O’Reilly, Roger Ailes, and Bill Cosby have been brought down in recent months by the weight and number of testimonials against them, and all have been revealed to have used the same divide-and-conquer strategy to avoid the consequences of their alleged misdeeds. Weinstein and Cosby were both apparently long known within entertainment circles to be serial abusers. Ailes and O’Reilly similarly had generated long histories of abuse allegations before they were finally forced out of their respective positions. All appear to have maintained their positions by quietly settling claims with victims who threaten to come forward, keeping the public from learning of the full scope of the pattern of criminal behavior that would otherwise emerge. With this simple game plan, a monster could spend decades living in plain sight.

As more and more predators are being called out now, more and more victims are finding the strength and support necessary to call out the powerful who would silence them. The trend is welcome, and long overdue. The lawyers representing these victims have played an important role in bringing awareness to the cause; but as we’re now discovering, the picture is more complicated than white-knight lawyers riding in to find justice. For as valuable as trial lawyers have been in advancing the conversation on sexual harassment, perhaps the bar also needs to wrestle with the notion that the civil tort system may have played a role in the problem.

The sexual predator game plan outlined above relies heavily on one of every trial lawyer’s most-used tools: the confidential settlement. There are plenty of legitimate reasons for confidentiality in a typical case. Defending parties routinely on the receiving end of lawsuits may not want lawyers comparing notes and developing a sense of what they will pay on a certain type of case. Some plaintiffs may want confidentiality if a case has taken a bad turn in discovery or if they’re settling on unfavorable terms. And for plaintiffs and defendants, confidentiality can help bring finality to a matter.

But for all of these legitimate reasons to keep the settlement of individual cases confidential, the Weinsteins, Cosbys, and O’Reillys of the world highlight what can happen when what seems to be a simple, commonplace legal tool is used by an alleged serial sexual abuser.

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It’s easy to see how victims and their lawyers might not anticipate how the abusers would exploit the protections that come with confidentiality. For a single victim, who doesn’t know about the other victims that might precede or follow, and who might be looking at a settlement that can put a nightmare behind them, why not agree to confidentiality? And for most lawyers not considering a broader pattern and social issues, confidentiality probably seems par for the course and potentially beneficial for their client.

But as long as predators can ensure nobody learns about what happened, and that their victims remain divided and in the dark, those predators can keep going about their awful business.

Our civil tort system, for all of its strengths, has its weaknesses and failings. It would be foolish to pretend otherwise. So long as sexual assault remains all-too-rarely prosecuted at a criminal level, the civil tort system will often be the only recourse for those few victims who have the ability to speak up and demand justice. But, as we have seen, the system can let them down. Serial abusers found a loophole — a way to use a system designed to secure justice to undercut it.

But now that the problem has been identified, there’s a chance to stop it. With the facts now surfacing about the serial attackers’ tendency to use confidentiality provisions as cover to get away with their conduct, lawyers representing victims are in a better position to counsel their clients about the short and long-term implications of their decisions — both for themselves and the other victims that may be out there.

When abuse survivors feel freer to name their attackers without fear of retaliation, the cost of keeping them silent goes up or is taken off the table entirely. Serial predators might find themselves without the ability to hide like they once could. As much as we view the tort system as a tool to improve our society, this might be a situation where society needs to advance in spite of the tort system, rather than because of it.

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It will always be up to the clients to determine whether to accept a confidentiality provision, but if we want to be the best advocates we can be, we owe it to them to make sure that we, and they, truly understand what they’re being asked to give.

James Goodnow

James Goodnow is an attorney, commentator and Above the Law columnist. He is a graduate of Harvard Law School and the co-author of Motivating Millennials, which hit number one on Amazon in the business management and legal communications categories. You can connect with James on Twitter (@JamesGoodnow) or by email at jgoodnow@fclaw.com.

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