Tuesday on HBR News we talked about a new development in the Harvey Weinstein scandal: It’s coming out that at least some of his accusers were downright friendly with him after supposedly having been victimized.
Now they’re seeking the very thing Weinstein was accustomed to having to pay for when he wanted it from the women with whom he has engaged… nondisclosure. Specifically, they’re demanding that the court keep their email and text communications with him hidden from the public, despite the very public nature of their allegations against him.
This is after other developments in the scandal have called into question the scope and severity of these allegations. For instance, Rose McGowan’s accusation against the mogul was pretty well discredited when it came out that she had described the encounter as consensual but regretted at the time. She has responded to discussion of that information by becoming increasingly unhinged in public.
Another accuser, Lucia Evans, left personal writings contradicting her story on the company computer of a former employer, which the employer turned over to prosecutors. As with McGowan’s accustion, Evans’s writings indicate the incident on which her allegation is based was consensual and friendly. It also came out that a friend of Evans had informed the Manhattan district attorney’s office Evans told her she willingly performed oral sex on Mr. Weinstein in exchange for the promise of an “acting job.” The lead detective in the case, Nicholas DiGaudio, failed to inform prosecutors and encouraged the witness to decline to cooperate with them. The case based on the Evans’s accusation was subsequently dismissed.
DiGaudio is also accused of telling another accuser to delete messages on her phone before handing it over to investigators, creating at least the appearance of tampering with potentially exculpatory evidence.
One of the items at the heart of this case is the nondisclosure agreements that several of Weinstein’s accusers had been paid to sign, which The Weinstein Company cancelled during its bankruptcy filing in March of this year.
Several of the women had taken big payouts to remain silent regarding their encounters with Mr. Weinstein, some receiving hundreds of thousands of dollars. Similar allegations have been made against the late Fox News Chairman and CEO Roger Ailes after his company confidentially settled with several women accusing him of sexual misconduct.
As Forbes.com reported in October of last year, details vary, but generally, NDAs are common features of settlements in these kinds of claims through which the aggrieved party agrees not to pursue litigation or discuss terms of the deal in exchange for a sum of money.
An encounter doesn’t even have to be nonconsensual for a woman to negotiate this kind of a settlement. In fact, whether the encounter happened at all can even be in dispute. The Stormy Daniels scandal is an example of this. She, having accused President Trump of an encounter he vehemently denies, negotiated a $130,000 payment to not make that accusation public… then did anyway.
After two years of searching for evidence of a conspiracy between the Trump team and Russian interests, Special Counsel Muller’s investigation finally settled on this payment as its gotcha against the president, labeling it a “campaign contribution” on the assumption that being accused of an affair with Daniels would have hurt Trump’s campaign.
This calls into question whether members of congress whose taxpayer-funded nondisclosure agreements with staffers alleging sexual harassment in their workplace are also guilty of making illegal campaign contributions. As yet, no investigations into this matter have been proposed.
On December 13th, it was reported that both the house and the senate had quietly passed proposals for how this practice will be ended. No, not the practice of making these settlements… just that of funding them with taxpayer dollars.
The results of separate legal actions against both former president Bill Clinton and Senator John Edwards have established in Washington DC that it is not a crime for a man to want to keep his sexual liaisons private, and that it’s acceptable for him to lie or even buy the silence of another person with knowledge of the liason in order to maintain his privacy. And it’s apparently not a crime for a woman to expect her silence to be bought and paid for, even when it’s in regard to consensual sex, or an allegation that is in dispute.
Under other circumstances such expectation of payment could be considered a crime against the payer, rather than a crime he committed.
Blackmail is described on USLegal.com as “the crime of threatening to reveal embarrassing, disgraceful or damaging information about a person to the public, family, spouse or associates unless money is paid to purchase silence.” The site goes on to explain that it is not the act of revealing the information that constitutes a crime, but the act of demanding money to withhold it.
Various states have statutes on their books assigning criminal penalties to the act. It’s also penalized under federal law. There is nothing in the law that excludes information about sexual conduct of any kind from the label “information” in any way that would make the law not apply when a woman receives payment to refrain from revealing information about her sexual interactions with anyone. The main distinction between blackmail and a nondisclosure agreement seems to be in who requested the agreement. If you demand money from a man to keep private some embarrassing information about his sexual conduct, you’re guilty of blackmail. If you reveal to that man that you have that same information, and he offers to pay you a large sum to keep it private, it’s a nondisclosure agreement.
There has, of course, been no indication of any Department of Justice plan to address the issue of Congress and its nondisclosure agreements made regarding members’ alleged sexual misconduct, either current or past. In the “private” citizen sphere, the Weinstein case limps slowly along, damaged, but still intact… so far.
In the wake of that case, California has banned employer-mandated nondisclosure agreements as part of settlements in sexual harassment cases. The law treats the practice as a one-way street in which a poor, innocent victim of workplace sexual misconduct is forcibly silenced using great wads of cash as a weapon against her freedom to seek justice or vengeance in either the legal system or the court of public opinion.
But is it? Last week we talked about the power women are able to wield by leveling public allegations of intimate partner and sexual violence. Certainly, women’s ability to command large payouts in exchange for strict nondisclosure agreements in sexual misconduct cases represents a similar advantage, yet it is consistently portrayed in media coverage of such cases as a form of vulnerability.
The underlying basis for that view is, of course, the stereotypical perception of male sexual agency vs female sexual frailty. The boundary and communication imbalances we’ve highlighted in past episodes lead to widespread perception of heterosexual intimacy as an area controlled by men, and imposed on women… and it is that very outlook women leverage as a means of securing reimbursement in these situations. This socially and legally accepted blackmail is a weapon that is almost uniquely employed by women, almost uniquely against men. Even a woman’s wounded sensibilities can be worth thousands on the open market, if the right man can be deemed responsible. Should he engage in actual lascivious acts, he had better pay the damsel if he doesn’t want his reputation ruined, and everything that relies on it destroyed.
Pay the damsel, or she will definitely wreck your life. But don’t count on her to not wreck it anyway. Surely, nobody will judge her if she does. A damsel’s best asset is her victimhood… whether she’s ever been victimized or not. What right does a man have to tell her what to do with it?
Ransom paid, news blasted, CEOs canned, businesses devastated, laws changed, and world leaders threatened with removal from office, all on the word of damsels…
But remember guys, women have no power, and no influence.