What's changed to protect women since Harvey Weinstein's accusers went public?: 'Everything … and nothing'
Silence still being sought through NDAs in cases of workplace sexual harassment
This story is part of #MeToo 2020, a CBC News series examining what's changed since the start of the #MeToo movement two years ago and how the trial of disgraced Hollywood mogul Harvey Weinstein will affect the future of the movement.
In October 2017, the New York Times published accounts by several women accusing film producer Harvey Weinstein of sexual misconduct, sparking a worldwide response and fuelling the #MeToo movement against sexual harassment in the workplace.
So what has changed since then?
"The confounding thing about the last two years is that everything has changed and nothing has changed," says New York Times journalist Jodi Kantor, in a recent interview with The National co-host Adrienne Arsenault.
"I think there's a lot of compassion for what women and others have faced over the years in the workplace and beyond. On the other hand, when we look at the fundamental system, when we look at laws and rules, when we look at a woman who is serving burgers for 10 bucks an hour in a restaurant, it's very hard to say that much has changed in the last two years."
Weinstein is to stand trial on charges of rape, sexual assault and predatory assault, with jury selection scheduled to start today. He denies any allegations of non-consensual sex.
While there has been a shift in social attitudes as well as a renewed appreciation of what sexual harassment is and why it has to be prevented, the two New York Times journalists who first broke the story say the judicial system does not reflect that shift.
In their recent book She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement, Kantor and fellow journalist Megan Twohey point to one particular area where they say change is needed most: Weinstein's "secret settlements" with women.
These non-disclosure agreements (NDAs) were at the core of their news coverage, they say, and were arguably the enablers in the Harvey Weinstein saga.
"In the case of alleged predators like Harvey Weinstein, he would do one of these secret settlements and then go on to allegedly harm many other women," says Twohey.
"So I think now we're finally starting to have a public debate and conversation about who really benefits, and whether or not these secret settlements have in fact allowed enablers to continue to prey."
Limiting NDAs
In the course of their reporting, Kantor and Twohey say they were able to identify at least eight secret settlements that Harvey Weinstein paid to women who had come forward accusing him of sexual harassment and sexual assault, during a period spanning 1990 through 2015. In effect, they say, paying women in exchange for silence.
"So when we came knocking on the doors of these women who had been victims of alleged sexual assaults and sexual harassment, they were legally prohibited from talking to us," says Twohey.
"Slowly but surely we were able to identify, to unearth those settlements, and start to document them in ways that helped illuminate this tool that he had to use to cover his tracks."
In some American states, such as New Jersey and California, there are limits on the use of NDAs in cases of sexual harassment and assault. But in Canada there is no legislation or clarity in this area, and no guidance from law societies about when NDAs should be used.
Roxanne Davis, an employment lawyer based in Calgary, has represented victims and acted as an impartial investigator in cases involving sexual harassment allegations. Given the lack of legislation in Canada, she says, some courts have had to go their own way interpreting NDAs in sexual harassment cases, so that complainants can speak out after accepting settlements.
"In this current environment, it would be useful to have a broader discussion in Canada about whether, from a policy perspective, it is appropriate to enforce NDAs in sexual harassment cases, so courts have some guidance in that area," Davis says.
Meanwhile, the U.K. has seen some change around NDAs. Last year, the Solicitors Regulation Authority published a warning to lawyers handling these types of agreements. It now says NDAs cannot be used to discourage victims from reporting sexual misconduct to authorities.
Secret settlement
More changes may come to the U.K., in part because of a lobbying effort by a woman who ultimately refused to be silenced by Harvey Weinstein: his former assistant Zelda Perkins.
She spoke with CBC's The National about her experience working with the now disgraced mogul, and gave a harrowing account of how she agreed to one of his secret settlements.
CBC News asked representatives for Harvey Weinstein for his response to these allegations. They replied via email that, "Neither Mr. Weinstein, nor his representatives will be making any comments on these matters. I hope you can remain objective."
Through the 1990s, Perkins worked as Weinstein's assistant at his Miramax office in London. Perkins is now opening up about those days and what she says was daily harassment working for Weinstein.
Perkins described one occasion when she says Weinstein asked her to take notes as he spoke in his hotel bathroom.
"I agreed that I would sit in the bathroom whilst he was in the sauna, so I couldn't see him, and take notes. And he went in there, and within a couple of minutes he said this isn't working and came out naked, and said 'I'm going to have a bath.'"
Perkins says she tried to leave the room, but he insisted she stay to continue their work.
"He said 'I'm just going to be in the bath, don't be so prissy.' And it sounds ridiculous, particularly now that we are talking about it. But at the time that felt like a pretty safe compromise."
However, by 1998 Perkins says she had reached her breaking point.
At that time, Perkins was working with a young assistant, Rowena Chiu. While at the Venice Film Festival, both worked with Weinstein; Perkins took the day shift and Chiu was assigned the later shift.
Perkins says she advised the younger Chiu how best to deal with Weinstein's inappropriate behaviour.
On the second night in Venice, Chiu told CBC's The National in a recent interview, their work began as it had the previous evening, discussing scripts. However, she says Weinstein also engaged in flattery about her degree in English literature from Oxford, along with asking personal questions.
"He asked me about my boyfriend. He asked me how long we'd been together, and whether he was my first boyfriend, and so on," Chiu says.
She says Weinstein removed his clothing.
"He asked if I could give him a massage. We had been working mostly on the bed in the sense I was half sitting on the bed and the scripts were spread out on the bed. He had taken his clothes off so he was naked, and so he requested a massage from me, which I was reluctant to give him."
Chiu alleges Weinstein asked her to take off some layers of her own clothing, saying it was warm in the hotel room and she would feel more comfortable.
"And so in that way it's almost an insidious, gradual path towards, you know, asking for more and more overt sexual favours. And so from there it led to him pinning me against the bed and and asking for just one thrust, and saying just one thrust and will all be over. It was pretty terrifying."
Chiu says she managed to pull herself away from Weinstein and out of the room.
"She told me the next day that he'd attempted to rape her," Perkins says. "So I went and confronted Harvey."
The women returned to London and sought legal help, and were told by their lawyers that their only option was an agreement. Perkins says what followed were long, "intimidating" sessions in the offices of Weinstein's lawyers Allen & Overy, the leading law firm in London.
Perkins recounts how she and her young assistant had to attend two 12-hour negotiating sessions with their lawyers and Weinstein's, one ending at 5 a.m.
"We weren't allowed pen and paper. We were escorted to the loo," Perkins says.
As for the agreement itself, she says it contained highly restrictive clauses, including ones that applied to any mental health counselling the two young women might seek in the future.
"We could talk to a therapist as long as the therapist signed their own confidentiality agreement. And if they broke the confidentiality agreement, we were the ones who Miramax would come after for breach of contract."
Perkins says that at her insistence, the NDA included conditions about Weinstein's future conduct, including that he receive therapy, but it's not clear whether they were met.
Perkins says a sum of £250,000 in financial compensation was also part of the agreement, to be divided between the two women.
She contends it was the "morality" of the agreement and the legal process that she found the most horrifying part of her ordeal.
"We had six or seven very reputable lawyers in that room. Every single person in that room did not say that there was anything wrong with our signing that agreement. That agreement was unethical and egregious on every level … to me that is far more disturbing than Harvey's behaviour.
"Harvey is just a weak man. There are thousands of weak men and women who abuse their positions of power and that will always be the case … Now, if you're sitting in a room and you have these erudite lawyers and you have two 23- and 24-year-old girls, and they're telling you that this is how the law works, then for me the world was over, the world was over."
On the day the non-disclosure agreement was signed, Perkins and Chiu left the law offices and shared a taxi home. Chiu describes how they made a pact not to speak to one another.
"I think it was a clear sense that we wouldn't remain in each other's lives, because we talked about how difficult it was not to refer to this period of our lives," Chiu says. "And I think it would have just been odd to continue. What were we to do, meet socially and make chit-chat and pretend that this had never happened? It had been such a difficult and defining and traumatic event."
'Serious risk'
Almost 20 years later, the New York Times contacted Zelda Perkins and Rowena Chiu. Both decided it was time to end their silence and break their non-disclosure agreement with Weinstein.
Journalist Megan Twohey says she believes Perkins and Chiu took a great risk in speaking out.
"It is a serious risk to break a settlement. These settlements are structured in a way so that if somebody does in fact break them, if somebody does speak out and tell the truth about what's happened, Weinstein is in a position to come after her not just for the money that was paid out at the time, but often for financial damages on top of that," says Twohey.
Perkins has since found her voice, giving testimony in the U.K. last year to a parliamentary inquiry into workplace sexual harassment. Perkins spoke to MPs about what she sees as the misuse of NDAs to cover up sexual misconduct and crimes in the work environment.
Still, the effect of the agreement on Perkins — who was forbidden to speak to anyone, including family and friends — was intense. She says it seemed safer to remove herself entirely from a life in London.
"I left the country, I moved to Central America, lived in Guatemala for five years. So I was away from family and friends. I couldn't really work in the industry anymore. I was afraid, because I couldn't explain to anybody what had happened."
Chiu says it was the enforced silence that weighed heaviest on her life.
"It was not something I was ever able to get away from. I found it an impossible burden to bear, really. And it came to a point where I tried to kill myself a couple of times. And I really felt I was never going to get away from the secret."
New York Times journalist Kantor concedes these secret settlements can offer an alleged victim momentary peace, some financial compensation to move on with their life, and an opportunity to keep their privacy. But there's also a danger.
"The problem is only visible when you look at these collectively, when you say is this really our best tool, what has this masked over the years, what has it enabled over the years," says Kantor.
"I think part of what we're beginning to see is that there's a distinction between privacy and secrecy," she adds.
"A lot of victims we've talked to, they do want to keep their privacy. But they don't necessarily want secrecy, in the sense that they want how much to tell, what to tell, to be under their control. They don't necessarily want to sign a document that says 'I'm giving up the right to talk about my own personal experiences.'"
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With files from Adrienne Arsenault