Update 4/15/18: Planet money did a very strong episode on this issue. Worth a listen.
Update 2/15/18: As usual, people much smarter than me are working on this issue. “Sunshine-in-litigation” statutes sound similar to what I’m working toward here, but with some actual substance. Of course, there’s much work left to be done.
Preface: I’m not a lawyer. If you are one, feel free to explain to me why this makes no sense.
I think I know how to stop people in power from abusing nondisclosure agreements to cover up predatory behavior, while also protecting the rights of individuals to freely enter into mutual confidentiality agreements. Basically, the current NDA structure would remain in place with one tweak: any second NDA for sexual harassment or assault signed by the same individual would trigger a sealed review.
The sealed review could operate under the same parameters as existing systems, like for minors. If reviewers find there to be a pattern of behavior that is intentionally targeted or predatory, then they could actually reject the NDA outright. As a side benefit, this review could also protect innocent people from the remote possibility of serial false accusers (which is extremely rare, but still figures as a concern for some).
Of course, there would be a few complications. The policy would have to be extremely narrow in scope, restricted only to cases of sexual assault and harassment; we don’t want to break the employment NDA system used throughout many industries. It should also be voluntary – leaving the victim with the power to determine if a case should be reviewed or not. Finally, there might also have to be a mechanism to let any existing NDAs stand, or maybe be grandfathered in, though I’m open to debate on that one.
But ultimately, some kind of approach along these lines should be plausible, similar to other areas of legal confidentiality. If implemented correctly, a sealed review policy could protect people from serial abuse of non-disclosure agreements.
This would not solve the entire problem of sexual assault. Not even close. BUT – it would make it incredibly difficult to evade the law as a repeat offender and much easier to catch these patterns of truly predatory behavior.