David A. Dana is Kirkland & Ellis professor of law at Northwestern Pritzker School of Law. Susan P. Koniak is professor of law at Boston University School of Law.
Our courts and our legislators are guilty. Over the past few weeks, we have seen how our legal system has empowered and encouraged sexual predators to continue abusing women through secret settlements and nondisclosure agreements, despite knowing how dangerous silence can be.
Now is different, we're told. A "cultural moment." Laws will be reformed. Courts will change their rules. Lawyers, corporations, the American Bar Association and think tanks such as the Heritage Foundation will do a 180 and end their hawking of secrecy.
And pigs will fly.
It has been 15 years since we learned how court-sanctioned secrecy and nondisclosure agreements protected pedophile priests, allowing them to continue abuse that included the rape of children. And our courts and legislatures, with a precious few exceptions, have done nothing to stop the legally sanctioned secrecy that protected those priests from exposure and prevented parents from keeping their children safe.
More recently, the public has turned its outrage to an obscure congressional fund used to secretly settle sexual harassment claims against lawmakers with taxpayer money. If Congress is going to use taxpayer money for these complaints, the public has a right to know.
But Congress is not alone. Some local and state government agencies also use taxpayer funds to secretly settle in cases of police brutality and other serious wrongs, leaving the public in the dark on the facts.
To center the debate solely on secret settlements in government, however, is a mistake. Defective fuel tanks and tires that explode, toxic chemical spills, the Dalkon Shield, leaky breast implants, GM's faulty ignitions and asbestos-saturated air — each of these examples involves dangers to the public that lawyers and companies have kept hidden through agreements that prevent victims from speaking out.
Most courts in the United States allow vital information to be kept from the public. Only a handful of states have passed legislation limiting secrecy in cases that involve substantial public hazards. And even in those few states with legislation, the "hazards" are generally too narrowly defined, not covering, for example, cases of sexual abuse, harassment or racism in the workplace.
For its part, Congress has done nothing. In every Congress since 1995, lawmakers have introduced legislation that would put serious limits on secrecy in cases involving substantial hazards to the public at large. Year after year, those bills remain unnoticed and die. Rep. Jerrold Nadler (D-N.Y.) introduced such a bill in the House in February. The bill has no co-sponsors. Not one.
Lawyers bear some responsibility, too. In the name of serving their clients, they often push for secrecy, arguing that it fosters settlement and prevents court backlogs. There is virtually no evidence to support those claims, but even if true, such assertions don't justify the pain, suffering and lives lost due to imposed silence.
As long as the system allows the buying and selling of silence, lawyers will say that they are serving their client's best interests by taking money in exchange for a promise that no one will talk. But as shown in the movie "Spotlight" — which depicts the Boston Globe reporters who uncovered dozens of child molestation cases by Catholic priests — lawyers are complicit when they silently settle case after case and leave the public blind and at risk.
But the legal profession is not about to change its (too rarely enforced) ethical rules, because secret settlements pay. We need legislators and judges to end this travesty. It's gone on long enough. In 1933, 11 workers who had sued the Johns Manville Co. over respiratory illnesses caused by exposure to the asbestos-based products that the firm made entered into a secret settlement . In the decades that followed, thousands contracted debilitating respiratory diseases and hundreds died.
In a landscape littered with corpses, the severely injured and traumatized children, it is difficult to see how the current wave of sexual-abuse accusations will be the catalyst that at long last produces change. But as the season of miracles approaches, we live and write with hope.
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