In May 2023, a federal court judge ruled that Erica Herman, ex-girlfriend of Tiger Woods, must comply with the terms of the non-disclosure agreement she signed at the onset of their relationship. Among other things, the NDA required Herman to pursue any claims against Woods through arbitration rather than in court. Doing so would protect the reputation of the golf superstar.
Herman disputed the validity of the NDA in part because of a piece of federal legislation, the Speak Out Act, which went into effect in December 2022. The Act rendered unenforceable non-disclosure agreements regarding sexual assault and abuse that were entered into before the allegation was made. In short, this means that a person cannot be compelled in advance to remain silent about any sexual assault or misconduct that might occur while involved with the party with whom they have entered into the agreement. Herman alleged that her claims against Woods included accusations of sexual harassment. The judge ruled that there was insufficient evidence for that contention.
This case is among the first to be heard since the passing of the Speak Out Act. The judge was tasked with determining whether the behavior Woods exhibited toward Herman counted as sexual abuse. Herman claimed that Woods suddenly and unexpectedly ended their relationship and kicked her out of the home they lived in together. She alleged that he used the guise of a trip to the Bahamas to get her out of the house and then abandoned her at the airport where a representative of Woods informed her that the locks had been changed and she would never see Woods again. In her arguments for the court, Herman pointed out that she was an employee of Woods when their relationship began, and he abused his position of power repeatedly in sexual ways. Her lawyers argued that Woods, “made the availability of her housing conditional on her having a sexual relationship with a co-tenant.”
This case raises moral questions about NDAs in general and NDAs that apply to sexual assault and misconduct specifically. Those who argue in favor of NDAs emphasize that they are consensual — no one has to sign an NDA if they don’t want to. Once they have signed it, the parties to the agreement are bound by the ethics of making promises. Further, advocates argue that in cases like Woods’s, rich and powerful people can have their lives and reputations destroyed by con artists and jilted lovers who are willing to lie to make some money.
Others, however, argue that NDAs are, in general, unethical unless they are narrowly tailored to protect trade secrets or intellectual property. These agreements always involve an imbalance of power, and, as a result, fully free and informed consent is not possible. Signing such an agreement is often a condition of employment and is therefore inherently coercive. Not all contracts are genuine promises — a person ought to be released by the obligations of a contract if that contract is exploitative or otherwise unjust. Such agreements prevent people from behaving fully autonomously and these restrictions do not serve any compelling interests aside from protecting the reputation of the individual or institution. There are much more important considerations than reputations.
Many non-disclosure agreements constitute instances of what Miranda Fricker has called epistemic injustice. Specifically, such agreements are instances of what Fricker calls testimonial injustice which occurs “when prejudice causes a hearer to give a deflated level of credibility to a speaker’s word.” Humans are social creatures and being taken seriously as a knower is an important part of living a flourishing human life. When a person is exploited by an imbalance of power to sign away their ability to publicly testify to their experiences, they are removed unfairly from the community of knowers and forced to participate in conversations in private when there might be important reasons that those conversations should be public. The moral problems here go beyond potential future harms; NDAs threaten to violate human dignity. The use of power to diminish the impact or importance of a person’s testimony is to treat them as an unlikely source of knowledge and to treat them this way arbitrarily, simply by contractual stipulation, is to treat them as less of a person.
That said, there are often important consequences that hang in the balance. Consider the case of former president Donald Trump and porn star Stormy Daniels. Trump paid Daniels in exchange for her signature on a non-disclosure agreement promising not to reveal the details of their sexual relationship which occurred years earlier. Daniels later took Trump to court, claiming that the NDA was invalidated by the fact that Trump did not sign his name, but rather signed with a series of Xs so that he could retain plausible deniability about the whole affair. Regardless of the specifics of this particular contract, it is arguably a contract that never should have been taken seriously at all. If a person wants to share details about their relationship with a candidate for President of The United States, that should be information that should come to light without any legal consequences so that the voting public can make fully informed decisions when they vote. They can choose not to be influenced by such information or to treat it as unreliable if they think that is what the evidence warrants, but they shouldn’t be precluded from hearing it at all because a powerful person paid a subordinate to sign an NDA.
Movie producer and serial rapist Harvey Weinstein also used non-disclosure agreements to silence his victims. His case offers an important insight into the use of NDAs in sexual abuse cases — when restrictions are placed on who a victim can speak to about their abuse, sexual predators are allowed to use the same tactics with more and more victims and avoid getting caught. The people who broke their NDAs with Weinstein were pivotal in his ultimate conviction.
Fricker notes that in cases of epistemic injustice, harms are often caused by abuses of identity power. It is common for people to be taken less seriously as knowers when they are members of minority or historically oppressed groups. Patriarchy creates conditions of epistemic injustice for women and members of the LGBTQ community. This is of particular concern in cases of sexual abuse because the very people who are the most likely to be abused are the people who are least likely to be heard or taken seriously about that abuse. If an NDA is in place, they won’t be heard at all or will be heard only in arbitration.
Woods and his representatives are concerned about harm to his reputation if Herman’s case against him were to be heard in open court rather than resolved in arbitration. Crucial to their argument seem to be claims about fairness. What they don’t seem to recognize is the privileged position that Woods is in — the unique position to use expensive legal wrangling to force silence to begin with. In this way, Woods can behave in whatever way he would like and then effectively purchase silence from women. What others might take to be fair is the opportunity to dispute allegations in court.
The Speak Out Act is a step in the right direction, but this case highlights existing systemic problems with the court system when it comes to these kinds of matters. Some people have a very narrow view of what counts as sexual abuse or harassment, and in this case the judge appears to be one of them. This situation makes clear the need for further discussion about the nature of sexual misconduct – a discussion which requires conditions of free and open expression.
