Mikaela Davies is a Toronto-based actor, director and creator.
In October, it was reported that Toronto’s Soulpepper Theatre Company cut ties with director Laszlo Marton after a formal investigation of sexual harassment was found to be substantiated. This story came to light after Lilla Sarosdi, a Hungarian actress, publicly spoke out about her experience with Mr. Marton, prompting nine more women in Hungary to do the same.
When I read the news, my heart stopped. This could, I thought, be the catalyst that would let me reclaim the legal right to use my voice.
Let me give you some context.
It’s been more than two years since I came forward to Soulpepper with my experience of sexual harassment. It’s been a little more than three months since I regained the legal right to speak about it.
You may have first heard about non-disclosure agreements used after cases of sexual harassment in the wake of last year’s Harvey Weinstein scandal. For those of you unfamiliar with them, NDAs are basically a euphemism for “shut up or we’ll sue you.” And they are not simply a tool of Hollywood; they’re being used to keep people silent everywhere.
I learned this because I was under one.
On Monday, The Weinstein Co., a movie studio founded by the now-infamous film producer that shares its name, filed for bankruptcy protection. More importantly, for survivors of sexual abuse and for the legions of people who have joined the #MeToo movement in recent months, it was also announced the company was ending all non-disclosure agreements signed by anyone “who suffered or witnessed any form of sexual misconduct by Harvey Weinstein.”
“Since October, it has been reported that Harvey Weinstein used non-disclosure agreements as a secret weapon to silence his accusers,” the company said in a statement. “Effective immediately, those ‘agreements’ end.”
All I’ve wanted, since the moment I signed my own NDA, was to get out of it so that I could speak privately about my experience and heal, on my own terms. However, through this entire ordeal, I’ve come to learn a lot about the problems posed by these legally binding agreements, and I think it’s time we shine a light on them in Canada.
A common misconception when it comes to NDAs is that money is provided in exchange for signing. This wasn’t so in my case. No compensation of any kind was ever discussed. What I did receive in exchange for signing the NDA was something called the investigative summary report. The only new information this report provided me was that the man who sexually harassed me denied the events recounted in my complaint by calling me “needy, vulnerable and insecure.” Not exactly a winning exchange for my freedom of speech.
I wasn’t expecting to sign an NDA after my sexual-harassment investigation. The paradox of taking so long to find the courage to use my voice to ultimately be met with legally binding silence wasn’t lost on me.
Now, to be clear, no one physically forced me to sign the NDA; the document even states that I had the right to obtain independent legal advice. So why would I sign it? Well, I was needy: I needed to feel that my bosses weren’t going to be mad at me for rocking the boat. I was vulnerable: in my mid-20s, with no money in my pocket to hire a lawyer. And I was insecure – deeply insecure that coming forward would forever ruin my working relationship with the company.
I’ve recently learned that some NDAs have clauses that allow you to speak to a health-care professional and/or your spouse or immediate family. The NDA I signed was written in the strictest possible language, making it illegal for me to speak to anyone about it at all. “Magic is in the containment” is a spiritual saying I’ve always understood to mean that the more people we share something with, the more we dissipate that feeling of magic. I believe pain is in the containment, too. By not having the right to confide in close friends, my parents or even a therapist about my experience of sexual harassment and the subsequent isolation I felt after coming forward, I kept that pain inside. It became a deep well that filled me with fear and the persistent feeling that somehow I had done something wrong. It’s hard to heal when you can’t let go.
But let’s put my feelings aside for a second, because there’s actually a bigger problem at play here. My NDA erased the opportunity for anyone else who was sexually harassed by the same man to find strength in my case and bring forward their own. In a way, it erased my entire experience.
Months after signing the NDA, I learned that a young woman I knew also had a deeply inappropriate experience with the same man, but I wasn’t allowed to tell her she was not alone. In essence, I legally wasn’t allowed to empathize with her. Instead, I gave her a hug and changed the subject.
It won’t surprise you to learn that, in my opinion, NDAs signed after cases of harassment and assault need to be rethought. Make no mistake, I’m not suggesting confidentiality be abolished. I fully understand that even in this culture of speaking out, the fear of losing work dictates most silence. Reporting harassment isn’t exactly a résumé builder. If you want to come forward privately, you should have that privacy respected and maintained. But it should not have to be at the expense of signing a legal document that forbids you from speaking about your experience with anyone ever again. That price is too high.
I’ve read some compelling arguments by lawyers that claim NDAs are necessary for protecting the victims – not only in terms of their confidentiality but also to ensure a larger financial settlement. I would never want to deprive someone who has been forced to leave their job due to harassment or abuse from fair financial compensation. However the use of NDAs in these cases, such as those with Weinstein, strike me as a survival method in a broken system that does nothing to prevent the abuse of others. It’s certainly not the responsibility of the person coming forward to end this cycle for everyone else, but the message of these NDAs is loud and clear: if you have enough money you can continue to infringe on another person’s human rights.
We have to ask ourselves, when we’re asked to stay silent, who is it that we’re protecting? And why? In my case, I certainly wasn’t protecting my colleagues. I wasn’t protecting the university students overseas where this man would return to teach. On reflection, I guess I was protecting him and the institution where it took place. I understand the desire to uphold reputations, and to minimize the impact on the lives other than my own, but at what cost?
There’s been a lot of discussion about the place of due process in public allegations of sexual harassment. I believe in due process. I also believe that it is the lack of due process (i.e. the lack of unbiased and effective reporting systems) for people who have experienced sexual harassment that motivates public allegations. Would many of the people who made public allegations against these powerful figures have seen change without reprisal if they had made a private complaint? I doubt it.
This is the moment in our industry for our leaders, institutions, boards, artistic and executive directors, unions and associations to create a system that ensures due process for all. You want to really know what’s happening in your building? Ask your employees/artists/students for anonymous feedback. We need affordable legal services, neutral parties to report to and the right to speak privately about our experience so we can heal. Given the number of harassment cases coming to light, we could also use a meaningful way to prevent, educate and rehabilitate, so we don’t lose half our industry by mid-July. And I know this issue extends way beyond the entertainment profession.
There’s not just an emotional cost to NDAs, but an economic cost, as well. My legal fees – to extricate myself from the NDA, navigate the media onslaught and wrap this process up – were on a generous sliding scale, yet still amounted to roughly a third of my income last year. My experience has been difficult, to put it lightly, but I am living the privileged version of it. I happen to be a lower/middle-class Caucasian woman with some recent theatrical success whose highly publicized case of sexual harassment allowed me the space in this column to write these words. My professional relationship with the incoming board chair and the interim artistic director allowed me the confidence to bring my experience to them. In response, the company covered my legal fees in full. I’ve had a first-class seat on a plane crash, with an extra life jacket. Many others are still in coach.
It’s important to me that you know I did not come forward lightly. I’ve yet to meet someone who has. One of the questions I asked myself before speaking up was, even if I am believed, is my personal integrity worth more than what this man has to offer this company as an artist? It was a hard question for me to answer. It took me more than a year to confide in management about what happened – a decision I only came to peace with when I learned I wasn’t the only one. I’m telling you this because I am scared to sign my name after these words. I’m scared that publicly identifying myself as the chief complainant in this case will make people see me differently. I’m scared that choosing to shed a light on my experience with NDAs will risk professional relationships I’ve made and, in some cases, friendships. It was fear that made me think my integrity wasn’t worth affecting this man’s life. It was fear that made me sign an NDA without fully understanding the consequences. And it is fear that wants me to remain silent now. Nevertheless, my voice was paid for with someone else’s courage. The only reason I was put in a position to regain the legal right to use my voice is because across the ocean Lilla Sarosdi, the Hungarian actress, chose to use hers.
My experience is not unique. This is not about a singular theatre company – one that likely is already developing one of the strongest sexual-harassment policies possible. This is a much bigger conversation. This is about a nationwide tool currently being used to silence people who more often than not cannot afford legal counsel to represent their own needs. I hope my own story can be a launchpad for a much needed wider dialogue. How many voices haven’t we heard?