#Can’tBuyMySilence: Implications of non-disclosure agreements for Restorative Justice

Published: Thursday, February 3rd, 2022


This is a blog by our Development Officer Leah Robinson.

 

Implications of non-disclosure agreements for Restorative JusticeThe recent universities’ pledge has drawn into question the use of non-disclosure agreements for cases of sexual harassment, bullying and other forms of misconduct by universities across the country. This blog explores the implications this has for Restorative Justice.

A non-disclosure agreement (NDA) is a legally binding form of confidentiality agreement, whereby the parties involved agree that any information included in the agreement will not be made available to others. However, NDAs can also stop victims or survivors from speaking out about the harm they have suffered and therefore can be used to hide wrongdoings by ensuring the silence of those affected.

A BBC News investigation published in 2020 found that nearly one third of universities had previously used NDAs as a response to student complaints of sexual assault, bullying and poor teaching. Over 300 individual NDAs have been signed, but it is estimated that the actual figure exceeds this. 

This follows a rise in the number of sexual assaults, reported by The Tab to have doubled in four years, with some students creating anonymous Instagram accounts to report their sexual assault after feeling let down by their universities. In response to this, on the 18th of January 2022, the Minister for Further and Higher Education Michelle Donelan created a pledge to prevent universities from using NDAs for complaints of sexual harassment, bullying and other forms of misconduct.

Michelle has stated: 

“Sexual harassment is horrendous and complainants should never be bought or bullied into silence simply to protect the reputation of their university. Such agreements make it harder for other victims to come forward and help hide perpetrators behind a cloak of anonymity.”

Michelle is asking universities to sign a voluntary pledge stating that they commit to not using NDAs to silence people who come forward to report incidents of sexual harassment, abuse, bullying or other forms of misconduct. The list of the 21 universities who have signed the pledge is listed here, but this still leaves 85 who have not yet signed it. 

This pledge was supported by the global campaign #Can’tBuyMySilence, which was set up by the former aide to Harvey Weinstein, Zelda Perkins and Canadian law professor, Julie Macfarlane. Their campaign was created to stop the harmful use of NDAs.

 

What are the implications for Restorative Justice?

Restorative Justice (RJ) can take place following a crime or incident to help repair the harm for those affected. In order for RJ to take place, there generally must be an acceptance of responsibility of what happened by the person who caused the harm, so that restorative questions can be answered, such as: ‘What happened?’ and ‘What were you thinking/feeling at the time?’.

If an NDA is signed following an incident where harm has been caused, the person(s) involved are legally prohibited from discussing what happened. Therefore, if the person(s) adhere to the terms and conditions of the NDA, they could not speak to a facilitator about engaging in a restorative process. This would mean Restorative Justice would not be an option for them. 

The only way in which RJ could take place in such cases would be if the person(s) involved do not adhere to the terms of the NDA, meaning that an NDA being signed prevents a restorative process from taking place. Consequently, victims or survivors of crimes, such as sexual harassment or assault, would not be able to seek the answers or get the closure that they may want if they have signed an NDA. 

According to the Code of Practice for Victims of Crime (2020), or the Victims’ Code, every victim of crime has the right to information about Restorative Justice. However, if someone were to sign an NDA, this would potentially mean they would not be able to report what happened to the police or seek any further support and, as a result, are being denied their rights under the Victims’ Code. Despite the safeguarding issues that could arise from this, there are also clear implications for RJ, as this could mean that the victim or survivor is never provided with information about RJ. It also negates the possibility of the victim or survivor engaging in a restorative process later in life, if they would wish to do so. This could be incredibly detrimental to a person’s recovery and denies them the option of gaining closure and other potential positive outcomes that can be achieved through RJ.

Why me? supports the entitlement of victims and survivors to information about RJ, contained in the Victims’ Code. We therefore encourage universities to sign the pledge and look to a future where access to RJ is available for everyone affected by crime and conflict.

 

For more information about Restorative Justice, please see our website here.

If you have been affected by a crime and would like to speak to someone about Restorative Justice, please contact us at info@why-me.org.

© 2022 Why me? Charity no. 1137123. Company no. 6992709.