Are confidentiality agreements legal in sexual abuse settlements?

A confidentiality agreement prevented McKayla Maroney, a U.S. Olympic Medal winner, from speaking out about sexual abuse suffered at the hands of Larry Nassar, a USA Gymnastics doctor. The agreement, signed between USA Gymnastics and McKayla Maroney, was worth a reported $1.25 million. Revelations about the confidentiality agreement has led to a renewed discussion of when, if ever, a settlement for sexual abuse should include a nondisclosure provision.

The settlement was reached in 2016, shortly before numerous other allegations about Larry Nassar began to surface. Since USA Gymnastics and Maroney signed the confidentiality agreement, Larry Nassar has been convicted of possession of child pornography and is facing several felony charges for sexual abuse of minors.

Maroney broke the nondisclosure clause in 2017. She originally tweeted about her abuse in a #MeToo post.

Is a confidentiality agreement regarding sexual abuse binding?

States vary regarding what can be included in a confidentiality agreement. In California, for example, nondisclosure agreements regarding child sexual abuse are prohibited. New York lawmakers are currently considering passing a bill that would prohibit nondisclosure agreements for any settlements involving sexual abuse and sexual harassment.

In many states, however, confidentiality provisions regarding sexual assault and abuse are valid and legally binding. For example, it is conceivable that USA Gymnastics could file a lawsuit against McKayla Maroney for breach of contract, although it is unlikely USA Gymnastics will do so.

Businesses still looking to cover up allegations

The grassroots movement to hold perpetrators of sexual violence and sexual harassment accountable has been so hugely successful because so many victims are tired of being silenced. While a confidentiality agreement must be agreed to by all parties, there is currently debate as to whether any kind of confidentiality agreement is appropriate for instances of sexual abuse, particularly child sexual abuse. It is a developing area of the law, one that should be followed closely to ensure that victims are being protected.

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