Many students would describe their university experience as joining a community, figuring out who they are, where they fit in, or a journey of growth. This is the case for lots of lucky students, but not for all, especially those who are forced to stay silent and suppress their experience. As a society, we watch the rise of accountability in modern politics and watch movements like #MeToo come to life and fight back against centuries of systemic oppression. We watch strong female political figures like Jody Wilson-Raybould take a stand against being silenced. We hear about new cases in the media every month like Harvey Weinstein’s serial sexual abuse, or even closer to home, Hockey Canada’s sexual misconduct. The question at hand is, how are perpetrators still getting away with this? Although there is no simple answer to that question, we can look at the legal factors that are continuing to harm and silence victims in Canada, starting with higher education institutions.
One primary way that sexual violence perpetrators continue to silence their victims is through the use of non-disclosure agreements, also referred to as an NDA. Former Boston College Law Review Editor in Chief, Prasad explains, “If a contract is a legally enforceable promise, a contract of silence is an enforceable promise to keep quiet about something.”[1] NDAs were created in the 1980s, with the main purpose being the prevention of employees taking trade secrets between businesses but ultimately, they are now being used in the vast majority of civil settlement cases.[2] However, researchers, Besley et al. explain, “many women and some men (mostly it is women who have been subject to sexual harassment and assault) have been compelled to sign confidentiality or non-disclosure agreements (NDAs) as legally enforceable contracts that bind both parties or they may be sued for breaches.”[3] NDAs create a culture of silence that discourages survivors from coming forward and seeking help, which further reinforces the stigmas surrounding sexual violence and further contributes to the trauma many victims experience. Harvey Weinstein is an example of one of the most notoriously heinous uses of NDAs to silence his victims, including his former assistant Zelda Perkins, who was the first of many women to break her NDA.[4] Perkins became an admirable advocate against sexual violence and partnered with Canadian law professor, Julie McFarlane. They have collectively begun the ‘Can’t Buy My Silence’ movement and campaign in the UK, US, and Canada. They are fighting against the public policy surrounding NDAs and trying to give victims a chance to fight back against their NDAs.
The work that Perkins and McFarlane have been doing in Canada has already had huge impacts which can be seen through changes in legislation. PEI became the first Canadian province to pass the model bill in November 2022. When a Bill such as the NDA model Bill is introduced in Canada, it requires three readings before being passed. Manitoba passed its second reading in November 2022. Following PEI and Manitoba, Nova Scotia is shortly behind, but progress falters. As students, our voice is key in changing the standards of NDA use and acknowledging the harmful implications they carry. Not only have NDAs been heavily used by corporations and government employees, but also by post-secondary institutions. It is easy to doubt the impacts of NDAs, when the topic is seen as taboo or insignificant to us as individuals. However, the impacts of NDAs are prevalent today and can be felt just four hours away from Acadia University at our sister university, the University of Prince Edward Island. Provincial Affairs Reporter, Kerry Campbell reported that multiple sources confirmed the non-disclosure agreements used to silence harassment allegations at UPEI including former students, faculty, and staff. The impacts of the use of NDAs carry a heavy weight. One victim of harassment at UPEI describes the impacts to campus culture, “People are afraid to speak out and the university is using public and student money to do this.” [5]
Acadia University has demonstrated its willingness to listen to our student body to create change through actions such as the addition of the Sexual Health Resource Centre, as well as the addition of the Sexualized Violence Response and Education Coordinator position. As students, we should consider how important it is to use our voice and ask for accountability from our university. This can be done by urging Acadia to sign the NDA university pledge through the ‘Can’t Buy My Silence Campaign.’ If you want to see Acadia University pledge to “never use a non-disclosure agreement (NDA) in a case involving sexual harassment, discrimination, other forms of misconduct and/or bullying”[6] you can show your support by signing the online student-led petition linked at the end of this article. As students in Nova Scotia, there is also more we can do to support the model bill including calling on our MLAs for change, putting pressure on our government to carry this bill through the second reading by using the contact information detailed below. Let’s follow in the footsteps of PEI to hold perpetrators accountable.
Important Resources:
Sign Student-Led Petition: https://www.change.org/NDAPLEDGEACADIA
MLA Contact Information: https://nslegislature.ca/members/profiles/contact
Bill No.144 Non-disclosure Agreements Act: https://nslegislature.ca/legc/bills/64th_1st/1st_read/b144.htm
Can’t Buy My Silence University Pledge: https://www.cantbuymysilence.com/uni-pledge
Additional Information on NDAs: https://www.cantbuymysilence.com/nda-info
Guide to engaging with your MLA and writing an effective advocacy letter: https://www.legalinfo.org/wehavepower
References are available upon request.
