Rose McGowan, the new Sexual Harassment Fury on social media, says she was raped by Weinstein and had to accept a $100,000 settlement with a confidentiality agreement as a condition of the deal. That means that if she subsequently told her story and accused Weinstein, she would be liable for damages, and would have to return the money. Right?
Not exactly. Most of the accounts in this sordid series of events make it seem like confidentiality agreements are iron clad and enforceable. Often they are neither. McGowan’s almost certainly wasn’t.
Debra Katz, an attorney specializing in sexual harassment law suits, recently explained that if employees or former employees came forward with information about Weinstein participating in criminal misconduct, their non-disclosure agreements or confidentiality agreements would probably be unenforceable, saying,
“These kind of very broad NDAs or confidentiality agreements typically violate public policy. Employees have to have the legal ability to discuss any concerns about unlawful behavior in the workplace … These broad provisions that would effectively silo people, make them feel like they can’t speak about this, are simply an instrument to put fear in people.”
My position has always been that lawyers who construct such agreements, knowing that they are unenforceable, are committing sanctionable ethical misconduct. The lawyer for the employee being silenced, moreover, has an obligation to let the client know that the requirement is unconscionable. Of course, it’s the client’s decision whether she wants to take the money. It is also unethical to make an agreement you have no intention of honoring. Continue reading
The latest development in the rapid fall of Hollywood independent film mogul and lionized Democratic donor Harvey Weinstein: The board of his own company, The Weinstein Company, just fired him.
You should read the New York Times’ damning story, following an investigation, about the extent of Weinstein’s long reign of misogynist terror in Hollywood. I don’t care to re-hash it. Note, as you read, that as disgusting as it is, more disgusting stories have come out since it was published. For example, a TV journalist now says that Weinstein once trapped her in the hallway of a restaurant that was closed to the public and masturbated in front of her until he ejaculated. She says she told friends about the episode, but remained quiet because “she was in a long-term relationship” and was “fearful of the power that Weinstein wielded in the media.”
- WHAT? She withheld this story for a decade because she was fearful, thus allowing Weinstein to abuse how many other women? Hundreds? I’d love to ask her if a powerful individual, in her opinion, could have done anything that would have caused her to make the effort to overcome her fear and self-interest. Someone who would act as she describes is pathological. What she endured was a criminal act. This is signature significance, is it not? Does a civilized, trustworthy, non-sociopath sicko ever do such a thing even once, on the worst day of his life? “I’m sorry I trapped you and masturbated in front of you; it wasn’t the best choice, and anyone can make a mistake.”
The man is and was dangerous. The woman had a citizen’s duty to report this to the police; I don’t care how powerful he was.
- And, apparently, dozens of actresses had experiences, if not quite that horrifying, horrifying enough. In the Times report, we learn that Weinstein invited Angry Progressive Feminist Ashley Judd to the Peninsula Beverly Hills hotel 20 years ago for what she thought would be a breakfast meeting about her career. Weinstein had her sent to his hotel suite, where he greeted the actress in a bathrobe and asked if he could give her a massage. She told The Times that he then proposed that she watch him shower. Now she tells us this? Now, after she excoriated the President on the Mall, using obscene terms to cheer on “resistance” “pussy- hat marchers in January and speculate about the President’s Trump’s wet dreams about his own daughter? Judd said she kept quiet to avoid alienating Harvey Weinstein because she was just at the beginning of her career—you know, like all of those Cosby victims. What’s her excuse for the rest of the 20 years, allowing more young actresses to be extorted into sexual submission? Larry O’Connor has the (revolting) answer, I think. In a piece for Mediaite, he writes of Judd,
Has she channeled that anger and humiliation and fear at the industry that allowed it? Or at the man and his multi-million dollar corporation that enabled it? No. Her real enemies are Republicans. Don’t you get it?
So the not-so-hidden message in Weinstein’s non-apology statement was “Hey, remember, I supported Hillary and Obama and I raise millions for Democrats and I’ll help destroy the NRA and Trump. I may treat you like shit, but my heart is in the right place. Now get your knee pads on.”
In Hollywood, being liberal means never having to say you’re sorry.
Judd has been praised for having the courage to tell her story now…when Weinstein is elderly and his power is waning, knowing the he was about to be exposed. No, this is an example of Rationalization #22, “It’s not the worst thing.” Yes, Judd is not as bad as the many, many actresses who kept quiet about this sexual predator, endangering others, who still are mum. Whoopie! Continue reading
(and thank heaven THAT week is over with…)
1 There will be a full post on the Harvey Weinstein matter later today, but let’s get his vomit-inducing statement to the Times out of the way. If you are late to this party, Weinstein has been a powerful Hollywood producer and power-broker for decades, as well as a high profile supporter of the Democratic party, the Clintons, and Barack Obama. In a New York Times exposé yesterday, he was also revealed as a serial sexual abuser and harasser, whose conduct and cover-ups his industry and the politicians who received and accepted his checks were almost certainly aware of. More of that later; let’s look at the mogul’s response to the Times story. You can read the whole nauseating thing here. I’ll focus on these lowlights…
I came of age in the 60’s and 70’s, when all the rules about behavior and workplaces were different. That was the culture then. I have since learned it’s not an excuse, in the office – or out of it. To anyone.
Sexual harassment has been unambiguously condemned in our law and culture for more than 30 years. This is a weak “Everybody used to do it” excuse. When did he “learn” it’s not an excuse? If he knows it’s not an excuse, why is he offering it as an excuse?
My journey now will be to learn about myself and conquer my demons. Over the last year I’ve asked Lisa Bloom to tutor me and she’s put together a team of people. I’ve brought on therapists and I plan to take a leave of absence from my company and to deal with this issue head on. I so respect all women and regret what happened. I hope that my actions will speak louder than words and that one day we will all be able to earn their trust and sit down together with Lisa to learn more.
I don’t even know how to describe this, except that more blatant BS I have seldom read in my life. Who is supposed to be convinced by such transparent “Damn! I’m caught! How can I pretend I’m sorry?” blather?
Here’s the pièce de résistance, though: Continue reading
Thanks for dropping by.
1. Does anyone else wonder how John McCain would have voted last night if President Trump hadn’t gratuitously insulted his military service and suffering as a prisoner of war? I do. I know how much veterans care about their service and sacrifice on behalf of their country, and how deeply a public insult like Trump’s must have hurt. McCain has been seething all of this time. Maybe last night was a vote based on principle; probably McCain thinks it is. There is no doubt, however, that he hates Trump’s guts intensely, and that kind of bias is almost impossible to banish entirely. He is also probably more than a little angry that his colleagues and his party allowed someone who would treat him that way to be the nominee.
The astounding foolishness of Trump’s initial insult to McCain was framed as an insult to veterans, but the fee for his gratuitous nastiness was always going to come due in a setting like last night. Human nature can’t be taken out of politics; in fact, politics relies on human nature. These people aren’t automatons. It would be ethical to put grudges aside, but nobody should count on it.
The President reportedly called McCain to argue for a “yes” vote. I wonder if the Senator said, Scaramucci style, “Mr. President, this unheroic prisoner of war says, with all due respect, ‘Go fuck yourself.'”
I also wonder if Trump learned anything.
Nah. Continue reading
“[These defendants are] good people who made a terrible mistake…Why no one made a phone call to police is beyond me.”
—-Dauphin County (Pennsylvania) Court of Common Pleas Judge John Boccabella, as he sentenced three former Pennsylvania State University officials, including former university president Graham B. Spanier, to jail terms last week for doing nothing after they were informed that told in 2001 that a former assistant football coach, Jerry Sandusky, had been seen molesting a boy in a locker room shower. Sandusky was found guilty of subsequently molesting many other children.
Of course he’s good person—just look at the guy!
This is, of course, the last act of the Joe Paterno/Penn State/Jerry Sandusky tragedy, which burgeoned into an Ethics Train Wreck and occupied as much attention on Ethics Alarms as any other event in the blog’s history. You can review all of that here, if you have the interest or the time.
Right now I want to ponder the judge’s statement with a few questions and observations….
1. By what standard can the judge call this “a mistake’? This is like George Costanza in “Seinfeld” asking his boss if having sex on his desl with the office cleaning woman was wrong, as if the option posed a legitimate puzzle at the time he did it. Was it a mistake because Sandusky turned out to be a serial child predator rather than just trying it out that one time? Was it a mistake because for once the justice system held a university president and other administrators criminally responsible when they looked the other way to protect their precious institution while endangering innocent children? Did Spanier et al. make a “mistake” in calculating the odds? Was the alleged “mistake” not understanding that “I saw Jerry a huge 50-year old man naked in a shower with a little boy” meant that something was amiss? Do you really believe that was how these men were thinking? Did the judge?
2. Why does the judge say these were good people? Because they had responsible, prestigious jobs? Because people trusted them? Because they are white, or wealthy, or have no criminal records? There are millions of prison inmats who have done less damage than Spanier, Peterno and the rest. Are the good too? Better than the Penn State enablers?
3. It your ethics alarm fails when it is most essential that it ring like crazy, what good is it?
Sources: Washington Post, New York Times
I began watching Netflix’s new “true crime” series “The Keepers” last night. I may not last through all seven episodes. In addition to the documentary story-telling methodology, which moves at the pace of a slug-race, the story of how unsolved murder of a Baltimore nun might be part of (yet another) horrific cover-up by the Catholic Church made me so angry and frustrated that I quit in the middle of the third episode. The series makes the case that the nun, Sister Catherine “Cathy” Cesnik, was killed because she was about to reveal ongoing sexual abuse of young teenage girls by the priest running the Archbishop Keough High School for girls.
The abuse and the extent of it is not speculation. As in so many other places, the Catholic Church in Baltimore eventually paid millions in damages to multiple victims of multiple predator priests who the Church moved around the region—so they could molest and assault new victims—rather than handing them over to law enforcement. It is hard to imagine any priest worse than Father Joseph Maskell, however, if even some of the allegations against him are true. Victims say he used student files and illicit police connections to target teenage girls who were already being sexually abused. He manipulated them using a sick combination of religion, guilt, hypnotism and intimidation, sexually abused them, and even delivered some over to members of the Baltimore police department for more abuse.
The documentary focuses on the school’s Class of ’69, though there must have been equally abused girls before and after. The conspiracy of silence began to crack in 1992, when an especially victimized member of the class suddenly realized that she had repressed memories of horrible experiences, and finally complained to the Baltimore Archdiocese, setting off the kind of despicable Church defensive strategies too familiar to anyone who has seen “Spotlight.”
This documentary isn’t good for my state of mind. It makes me wonder not only if all is lost, but also if all wasn’t lost long ago. I was raised in a largely Catholic community. I am not religious, but as an ethicist I recognize the important, civilizing role religion has played in teaching and enforcing moral principles for the majority of the public for whom ethical analysis is too challenging. Episodes like the Father Maskell scandal raise questions that I rebuke myself for asking, like “How can this be?” “Jane Doe,” the star witness in the documentary, is still a devout Catholic. Her immediate response to every dilemma is to pray. I don’t get it. She was savaged, threatened and abused by a priest that she knows the Church allowed to prey on the vulnerable students entrusted to him. Why would she still trust the Catholic Church?
Why would anyone? Continue reading