Secret settlements protect sexual predators Putting a spotlight on assault takes power away from abusers: Our view

The Editorial Board | USA TODAY

Show Caption Hide Caption Thousands to march in #MeToo rally Survivors of sexual assault and harassment are expected to attend a #MeToo Survivors march on Sunday afternoon in Los Angeles.

The question that reverberates in the deplorable chronicle of sexual harassment and worse by people such as Harvey Weinstein and Bill Cosby is: How could they have hidden their predatory actions toward so many women for so long?

One answer is secret settlements and hush money, all sanctioned by law.

Sure, Weinstein had his stable of lawyers and spies slithering around victims and journalists to stay ahead of accusations, but his and Cosby's major shields for decades were confidential settlements and similar tools employed all too often to shield those responsible for other threats, from makers of dangerous cars to incompetent doctors to pedophile priests.

OPPOSING VIEW: Confidentiality helps protect victims, too

The floodgates broke only after some courageous women were willing to speak out and the news media revealed their abusers' deeds publicly. Without the glare of the media spotlight, Weinstein, Cosby and their kind would have had the opportunity to find more victims.

On Nov. 3, one month after actress Ashley Judd and others went public in The New York Times and New Yorker, revealing scores of harassment and assault allegations against Hollywood producer Weinstein, New York police said they were building a criminal case against him based on an actress’ claim that he raped her seven years ago.

Cosby, too, was finally brought to public account in a Philadelphia courtroom only after the unsealing of a 2005 deposition in which he admitted he’d obtained Quaaludes with the idea of giving them to women he wanted to have sex with. While the trial ended in a mistrial, Cosby will be re-tried and many women felt safe to come forward after his behavior was public.

Such cases underscore the power of putting a spotlight on harassment and abuse. The result? Fewer abusers are free to act with their pasts safely hidden.

Secrecy in these cases is too easy and comes in all sorts of legal permutations: Non-disparagement agreements are forced on new employees to prevent them from ever saying anything detrimental about the company. Confidential settlements of claims in a lawsuit, sometimes even before it is filed, usually involve an exchange: The victim gets money, and the abuser gets a contracted promise of silence. Court orders signed by judges can seal damaging documents, such as the Cosby deposition.

Federal or state limits on such contracts are not particularly strong. Wealthy, powerful men and corporations are easily able to silence victims by paying hush money. Such techniques have been used liberally to keep women quiet.

Some remedies are simple. When cases land in court, federal and state judges have plenty of authority to refuse to sign off on secrecy that involves covering up a public hazard, such as sexual predator. They should use it. Under California law, confidentiality agreements are not enforceable if they involve a felony charge, such as some sexual assaults. More states should pass similar measures.

However, new laws banning secrecy may not work in this complex area. Some victims may fear reprisals or feel shame — even though they have no reason to — if they go public. That’s why women and their lawyers need to step up and realize that by being silent they become enablers, allowing sexual predators to victimize more women.

Fox News fired Bill O’Reilly in April, not long after Wendy Walsh, a former guest on O’Reilly’s show, publicly accused the host of sexual harassment. Walsh isn't “seeking any money, just accountability,” her lawyer said in a news conference.

You can't fault some victims for accepting financial settlements. But if more victims had taken the same attitude as Walsh and refused to keep silent, prominent predators would have been shut down years earlier.

USA TODAY's editorial opinions are decided by its Editorial Board, separate from the news staff. Most editorials are coupled with an opposing view — a unique USA TODAY feature.

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