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The Legal Profession, Enabling Rape

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I haven't said anything up to now about Hollywood mogul Harvey Weinstein and the multiple sexual assault scandal that's enveloping him, and  --  much more importantly  --  the Holier-Than-Thou entertainment industry culture of which he has been a mainstay for decades.  As with the narrative we often hear repeated in court, the rapist, Mr. Weinstein,  isn't the victimizer; he's the victim  --  the victim of an environment of indulgence, excessive drinking, "sex addiction" and so forth.

For generations, this way of thinking has massively contributed to, and excused, rape.  Indeed, rape has been all but accepted in Hollywood with the blase' phrase "casting couch," which was (and remains) a euphemism for powerful men forcing sex on women (or, in the case of director Roman Polanski, girls).

Of course, the enabling has its defenders and facilitators, to wit, lawyers.  The legal profession's stultifying self-justification towards its own "standards," and snickering indifference to victims, is all too obvious in this article from the very aptly named Above the Law.
The article starts:

Zelda Perkins, a former personal assistant to Harvey Weinstein, has broken her contractual obligations under a non-disclosure agreement to tell the Financial Times the details of what she witnessed and experienced while in his employ. This isn't some accidental or inadvertent breach of a complex document. It is an extraordinarily deliberate decision made by a self-possessed and motivated woman. As she says in the FT interview:

I want to publicly break my non-disclosure agreement. Unless somebody does this there won't be a debate about how egregious these agreements are and the amount of duress that victims are put under. My entire world fell in because I thought the law was there to protect those who abided by it. I discovered that it had nothing to do with right and wrong and everything to do with money and power.

******************

From there, Perkins and her colleague got a lawyer from the U.K. firm Simons Muirhead & Burton. They entered into a negotiation with Weinstein's attorney, Mark Mansell of Allen & Overy. They reached an agreement whereby the women would split £250,000, if they agreed to the NDA and to limit their participation in any investigation into Weinstein.

Excuse me, but an agreement "to limit their participation in any investigation" sounds a bit like an agreement to attempt to obstruct justice, no?  And to conceal sexual abuse up to and including rape, a concealment known in the law as misprision of felony.

And who drafts these agreements?

Right you are!

Now let the excuses begin  --  except that they're nowhere near as modest as one might expect from mere excuses.  Instead, they're an anthem of arrogance, not to mention wildly sexist callousness, toward the victim:

Now, lawyers are quite used to being unpopular figures. Some of the noblest work of the profession involves defending true criminals in a court of law.  

We're not fifteen words into this before we hear it's all in the name of nobility

And ensuring that the system treats the accused -- as well as the guilty -- by the standards enshrined in the Constitution is important work. 

After the "nobility" comes the constitutional "enshrinement."  Good grief.  And then the phrase, the "accused as well as the guilty," as if there were a difference between the two less than 98% of the time.

But in this case, Weinstein was trying to avoid all public discussion about his behavior, and the NDA served as legal glue to ensure the status quo -- one where he expected assistants to watch him bathe -- continued with only a minor (for him) monetary penalty.

And what about the lawyers at A&O or any number of other solid, reputable law firms that could have been tasked with doing this job? They didn't do anything we don't expect all good, competent lawyers to do. They acted well within the confines of the law to generate a result in the best interests of their client. 

If bribing victims and witnesses to cover up rape  --  not just one time, but dozens or hundreds or thousands of times going back decades  --  is "within the confines of the law," then we ought to think about whether the law needs changing.

The culture of rape of which the entertainment industry reeks, now put on display by the Weinstein scandal, has become Exhibit A in my longtime view, expressed often on this blog, that the ethics of the legal profession need a shift away from dead-end client-orientation and more toward truth-orientation.

As things stand now, however, this is how it is:  The legal profession enables rape.  And it goes way, way beyond just providing a defense at a criminal trial, if there ever is a trial.

The client pays, the truth doesn't.  That's the heart of the matter, not nobility and not the Constitution.  And as long as we tolerate the professional ethics we have now, this fact will continue to bring lawyers the sorry reputation they have earned.

16 Comments

Hi Bill.

I was wondering if you could clear something up for me.

Would I be correct to assume that an NDA would be unenforceable when the disclosed incident is a violation of law?

If so, the use of them by Weinstein's team is mostly intimidation, as the lay person may assume that they cannot even talk about a violation of law. Correct?

If my assumptions are correct, it should be required that it is quite clear to those signing an NDA. Even have a separate, clearly worded standard form that they sign in addition to the NDA that prevents it from being lost in all of the "legalese."

Your implicit suggestion that the Harvey Weinsteins of the world be required to give a variant of Miranda warnings before demanding these NDA's is positively brilliant.

Of course LEGAL warnings are hardly the main warnings young actresses need when they start dealing with these Hollywood types (who at least take time off for "fun" after lecturing the rest of us about the barbarism of the death penalty), but they're certainly a place to start.

Maybe the next ABA Convention panel on women's rights can discuss how the warnings should be worded (snark alert).

Decencyevolves: State Legislatures can and should prevent the use of NDAs in this context and in other contexts designed to hide abuses of power and corporate malfeasance, because that is what Weinstein’s actions are all about—wealthy and powerful people abusing people who lack the power they have because they can in a culture that provides them with impunity.

It’s hardly limited to Hollywood. The Access Hollywood tape and the more than 20 women who came forward last year show that you can get elected President despite bragging about such abuses. Fox News was riven with scandal after scandal as Ailes, O’Reilly and others who had engaged in sexual misconduct known within that network for decades had to step down. When you reward such behavior with wealth and power, you get more of it. As a society, we need to do better.

Not sure you've got the direction of causation right there, DE. Is such behavior rewarded with wealth and power, or is one of the rewards of acquiring wealth and power the ability to get away with such behavior, at least for a time?

One way we reward wealth and power is with impunity, sometimes for extended periods and sometimes permanently. One man can brag, “If you’re a star, they let you do it” and be elected President. Others can be notorious in their industries, whether it be movie making or cable news, and have staffs of people who empower their misconduct and clean up after them, ensuring that they suffer no consequences for decades, and leave employment with golden parachutes sufficient to afford them and their progeny with generations of luxury and comfort.

To the extent everyday people are embittered and cynical about society and their place in it, such views are promoted by the seeming absence of equal sanctions and equal justice under law, for the powerful and powerless alike.

So decency, where were you when Ted Kennedy was in the Senate? You talk about Trump, but it seems you have a glaring double standard.

I wasn’t one of his constituents, didn’t vote for him in the 1980 Democratic Presidential Primary and looking at the reports I’m seeing, they can’t be proud at having nominated or elected him.

Looking at media from my childhood and backward reflections to it (Mad Men comes to mind) feels like a crazy and unsettling fun house mirror. I recall it distantly but didn’t realiz at the time precisely how messed up it all was. How lousy was it to be Sandra Day O’Connor, graduating third in her class at Stanford and interviewing at forty law firms but unable to get a job apart from legal secretary until she joined the San Mateo DAs office?

This kind of behavior has become increasingly unacceptable as well as actionable. What excuses, over the past ten years, justify turning a blind eye?

Ted Kennedy was lionized by the entire Democrat Party immediately after he died. Why isn't that entire party tainted by that? And when Al Sharpton, who famously called the Central Park Jogger a "whore", visited the Obama WH numerous times, where were you? Where was your party?

The double standard is just so laughable.

I expect a huge load of whataboutism here. I’m certainly seeing it from the right on the eve of expected indictment(s) tomorrow. What I’m not seeing is any defense of the actual sitting President, whose conduct is inexcusable.

It's not "whataboutism"---people know that Trump is a moral cretin--the fact is, though, he's a piker compared to the entire cabal of national Democrats.

Democrats lionized Ted Kennedy. And they continue to support Hillary Clinton--after the Clinton Foundation received millions from uranium interests. You continue to peddle this "Trump is bad" while ignoring far more awful things on your side. There was no collusion by Trump--but there was collusion by Hillary, and the worst kind--it appears that BS dossier was used to wiretap people. Trump never did anything close to that bad.

"I expect a huge load of whataboutism here."

"Whataboutism" is the new, dismissive name for the venerable demand that the same criteria for decision be applied no matter whose ox gets gored at the end.

"I’m certainly seeing it from the right on the eve of expected indictment(s) tomorrow. What I’m not seeing is any defense of the actual sitting President, whose conduct is inexcusable."

What you see and fail to see might be a product of the subject of this entry, to wit, the role of the legal profession in enabling rape through its authorship and willing enforcement (for a fee) of these NDA's.

Would you agree that lawyers, including but not limited to criminal defense lawyers, should be expelled from the profession when they offer clients NDA's knowing, or having good reason to believe, that these provisions will be used to help suppress disclosure of sex abuse, up to and including rape?

Very good discussion. The public always see the lawyers as a kind of person who would make the wrong up and take it on its head as morally right via laws. They felt that intuitively justice is broken by us. However, in China and also German, UK and US as far as I know, some academics would reckon it as practice of Rule of Law, Due Process, or protection of basic human rights. But my question is, can these big names really relieve us lawyers from the awkward situation? Are these big names truly the moral antidote to it? The answer maybe negative. Oue lawyers is going too far in this way and cannot deceive themselves anymore. They have to face the reality and make change. Of course I am not advocating to totally discard these values, but maybe we can re-consider them and maybe re-construct our professional ethics. At least in such sensitive and obvious case like rape, the lawyers should be careful and try to respect the emotion or justice intuition of the victims and the public. Our people is not lying. They do feel deceived in name of rule of law or justice. Otis' last phrase is good. The client pays, the truth doesn't. In my eyes, justice or the thing due to everybody won't pay as well. But they are invalueble.

Decencyevolves: I find myself getting a little far afield from where I was starting at least, which is this. Abuse by the wealthy, powerful, connected and talented is a societal and organizational problem. Hollywood, news organizations and political parties, regardless of political affiliation, have for far too long allowed people impunity to engage in abusive, destructive and even criminal behavior without any negative consequences based on their wealth, power, connections and talent. That’s been true on the left and on the right: Trump, Schwarzenegger, Teddy Kennedy, Chris Dodd (from what I’ve read), Bob Packwood, Ailes, O’Reilly, Oreskes (NPR) all engaged in terrible behavior. The companies and organizations they’ve worked for have turned a blind eye, lawyers have written NDAs, and the courts have enforced them without concern about the public policy consequences. Society as a whole, legislatures and courts are finally waking up to how destructive this can be.

NDAs are generally repellent and should be unenforceable. Does that means that lawyers who have drafted them should be disbarred or imprisoned? What would this mean for attorneys who draft contracts designed to shield corporate malfeasance in tort cases, which may have caused the deaths of many? Imprison and disbar then too? Should we also have disbarred lawyers who drafted racially restrictive covenants or included them in contracts based on the destruction they caused? That doesn’t strike me as a direct, workable or partcularly meaningful way to address the problem, as opposed to a way to vent pique about lawyers. Racially restrictive covenants went the way of the dinosaur when courts struck them down and refused to enforce them. That should be the fate of NDAs. Courts and legislatures should recognize that they are void as against public policy and get rid of them.

As for the larger problem, our organizations and society at large need to adopt a “no a**hole principle.” If you are abusive and treat people like dirt, no decent part should nominate you, no decent voter should vote for you, no decent broadcaster should broadcast you, no decent paper should publish you and no decent employer should employ you. Until those social strictures are in place, our society will be roiled with this endlessly.

Very quickly:

1. I agree with you that decency as a cultural standard is more important than law.

2. Professional licensure should include at least a rock-bottom standard for decency.

3. These NDA's are an enticement (that's using overly gentle language) to obstruction and misprision of felony. They are not merely odious in general, as in a number of your examples.

Because they have specifically legal implications relevant to the honest operation of the legal system, they should be deterred and punished by particularly harsh means. When a half dozen or so lawyers get booted for writing these things, they will wither away, as they should have years ago.

Our profession desperately needs to clean it up. We have to start somewhere, and this looks like a good place to me.

How important is it that individuals have the capacity to achieve fair notice in caselaw or statutes that their actions would be considered criminal before they be prosecuted? Put another way, does the unexpected use of novel theories of criminal liability pose due process concerns? If I were representing an attorney charged in your hypothetical case, that’s where I’d look.

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