“Can’t Buy Silence Act!” Canadian organizations are using NDAs to silence victims of sexual assault

BY SIMONE J. SMITH

Six years after a sexual assault incident in 2018, a victim has found the courage to speak. This survivor signed an NDA, silencing her and leaving her isolated for years. She watches hockey players enjoy successful careers on TV, victimizing her over and over again, while she is forced to conceal her: fear, guilt and shame, even though she has done nothing wrong.

The hockey players involved have been allowed to carry on without fear of facing prosecution, or justice, and all of it has been done on the Canadian taxpayer’s dime. This is unconscionable. E.M. made the decision to continue pursuing justice and tell her story on her own terms. This incredibly courageous young woman should not have had to overcome so many obstacles on her healing journey.

Last week it was brought to our attention that provinces and territories do not limit the use of non-disclosure agreements (NDAs) in sexual assault cases, meaning that if a survivor signs an NDA, they often cannot talk about their experience with people who could provide essential support — like therapists, family, and friends.

The use of Non-Disclosure Agreements (NDAs) in cases of sexual assault within organizations is controversial and is definitely ethically questionable. Organizations may be concerned about the potential damage to their reputation if news of a sexual assault incident becomes public and by requiring an NDA, they aim to control the information and prevent it from reaching the public or media.

Companies may also use NDAs to prevent victims from sharing information about the incident with law enforcement or pursuing legal action. This can help organizations avoid legal consequences, and potentially monetary damages. In some cases, an organization may offer a settlement to a victim of sexual assault in exchange for signing an NDA. This could involve financial compensation, therapy, or other support. The NDA may be included as part of the broader settlement agreement.

Some organizations argue that NDAs are meant to protect the confidentiality of both the victim and the accused. However, critics argue that this can contribute to a culture of silence and enable perpetrators to continue their behavior without consequences.

Last year, the “Can’t Buy Silence Act” was introduced in the Senate. It would prohibit the use of NDAs in sexual assault cases across the country.  Survivors of sexual assault have witnessed the harm that Non-Disclosure Agreements (NDAs) can cause. These NDAs often serve to silence victims, perpetuating a culture of secrecy and shame around sexual assault.

Despite there being no legal NDAs that prevent claimants from reporting sexual offences in Canada, they still exist informally, or under different guises. They are now being used as tools by perpetrators and institutions to protect their reputation at the expense of survivors’ rights to justice.

Our provincial governments are failing all survivors by not banning NDAs, but perhaps the decision should be taken away from them and be federally mandated instead. Hockey Canada, Canadian Armed Forces and RCMP, to name a few organizations, benefit from Federal funding. This is financed through our tax dollars and the organizations and institutions must operate under stringent guidelines, in order to continue to receive funding.

With the news that five former Hockey Canada players have been told to surrender to police following an investigation into a sexual assault in 2018, NDAs in these cases are being heavily scrutinized and criticized. Something to consider though is, when women are allowed to speak, are their words truly heard?

According to Statistics Canada (2018), only 5% of sexual assaults were reported to police – a figure largely attributed to fears surrounding stigma and retaliation. In an article titled Unfounded Sexual Assault: Women’s Experiences of Not Being Believed by the Police (2016), researchers found that although at that time less than 5% of sexual assaults were reported to law enforcement, one in five cases reported to police were deemed baseless (by police) and therefore coded as “unfounded.”

They discovered that high rates of unfounded sexual assaults reveal that dismissing sexual violence had become common practice amongst the police. Much of the research, on unfounded sexual assault is based on police perceptions of the sexual assault, as indicated in police reports. These women were faced with insensitivity, blaming questions, lack of investigation, and lack of follow-up from the police, all of which contributed to not being believed by the institutions designed to protect them.

Protections for Marginalized Women in University Sexual Violence Policies (2022) tells the story of Black law school student Brandee Blocker Anderson. She was sexually assaulted in 2015, and she sought help from her prestigious United States university. By the time the school completed its assault investigation, Brandee was quizzed about sexual innuendo in rap music, forced to wait weeks for psychological help, required to seek outside medical care that saddled her with a multi thousand dollar medical bill, and cautioned not to report her Black perpetrator out of ‘racial solidarity.

We must stand together against these harmful practices that continue despite our legal safeguards. Allowing victims to share their experiences empowers them by giving them a voice. It enables survivors to assert control over their narrative and regain a sense of agency after experiencing traumatization of the soul. When victims speak out, it is crucial for them to be taken seriously and believed. Doubt and skepticism can further traumatize survivors, making them less likely to report, or share their experiences in the future.

The voices of survivors can drive legal and social changes by influencing policies and attitudes toward sexual assault, and it is exactly why NDA’s must be eradicated. By speaking out, survivors contribute to the broader conversation about consent, victim rights, and the need for a more just and supportive system.