Lawmaker: Void confidentiality for sexual assault

December 1, 2017
Arizona Republic
Dustin Gardiner

Confidentiality agreements that prevent victims from speaking out against their sexual assailants or harassers could soon be rendered useless in Arizona.

A state lawmaker on Thursday proposed legislation that would make nondisclosure agreements “void and unenforceable” when dealing with cases of alleged sexual assault or harassment.

State Rep. Maria Syms, R-Paradise Valley, said she has proposed House Bill 2020 to close the “sexual predator loophole” that allows perpetrators to buy their victims’ silence. Ending such agreements, she said, could prevent future incidents.

“We want to make sure that sexual predators cannot buy their way out of jail or liability only to prey on people in the future,” Syms said.

Arizona lawmakers will consider HB 2020 when the Legislature convenes in January. The issue likely will take center stage given accusations of sexual misconduct that have roiled the state Capitol in recent months.

Syms’ bill includes a provision prohibiting anyone from entering a confidentiality agreement related to allegations of sexual assault or harassment by an elected official.

While Syms, who joined the Legislature this year, said she personally hasn’t experienced harassment at the Capitol, she said she was harassed in her earlier career as an attorney. Most women, she said, face harassment at some point in their lives.

“I hope this legislation is one step forward in restoring that trust and restoring people’s faith in the work that we do down at the Legislature,” she said.

The proposal comes as at least seven women have publicly accused state Rep. Don Shooter, R-Yuma, of inappropriate behavior, including making sexually charged comments, touching them inappropriately or making unwanted advances. Shooter has denied any wrongdoing.

The Arizona House of Representatives has hired an outside attorney to investigate accusations against Shooter and other lawmakers. It’s unknown if confidentiality agreements are an issue in any of those investigations.

Syms said she was motivated to propose the bill in light of the “historic moment in our country.” Women and men across the United States, from statehouses to Hollywood, have gone public with allegations of sexual misconduct by often-powerful individuals.

Often referred to as the #metoo and #believeher campaigns, the movement was sparked by numerous accusations against movie producer Harvey Weinstein.

In Weinstein’s case, multiple women have accused him of using confidentiality pacts to buy their silence. Weinstein has said his encounters were consensual. The movement has also shed light on members of Congress who’ve used nondisclosure agreements to quiet allegations.

Victims-rights advocates say such agreements, which can subject victims to costly litigation if they speak out, can enable serial predators to go unnoticed for decades.

They have called for state lawmakers across the country to revise contract laws. Lawmakers in California, New York and New Jersey also are proposing legislation to void nondisclosure agreements when sexual assault or harassment is alleged.

Andrea Johnson, senior counsel for state policy at the National Women’s Law Center, said confidentiality agreements have been “shown to play a role in allowing harassment to be swept under the rug.”

However, she said, Arizona lawmakers should keep in mind that some victims might want the privacy of a confidentiality agreement, which can provide them leverage in getting an assailant or organization to correct their wrongdoing.

“Blanket bans could be problematic, so they should definitely talk to sexualassault advocates that are working with victims” to balance those interests, Johnson said.

HB 2020 would void confidentiality clauses in employment agreements, which some workers must enter to get a job. It would also void secrecy clauses in settlement agreements that victims enter with an assailant or harasser after the fact.

Syms said the bill would apply retroactively, so all existing confidentiality agreements related to allegations of sexual assault of harassment would be void.

She said that while she’s sensitive to the concern that some victims might want privacy, there’s also a public-safety concern in creating transparency to “make sure we stop the bad guys.”

Syms said she plans to work with lawmakers and victims groups to ensure the Legislature navigates that challenging balancing act.

“We want to make sure that sexual predators cannot buy their way out of jail or liability only to prey on people in the future.”