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Some states have curbed nondisclosure agreements, passed bills related to testing rape kits and examined their own policies for dealing with workplace harassment.
This article was originally published by Stateline, an initiative of The Pew Charitable Trusts, and was written by Rebecca Beitsch. It is Part Two of Stateline's 2018 Legislative Review.
The #MeToo movement has touched almost every industry in the past year, and state legislatures have been under growing pressure to curb sexual assault and harassment in private workplaces and within their own chambers. But has the reckoning had an impact on the law?
Early signs point to yes.
Sure, the resignations have been plentiful as credible allegations of sexual harassment have toppled lawmakers. A Stateline review found at least 32 lawmakers who left office in the face of such accusations. But lawmakers also have pursued broader changes in response to the movement.
Some states have placed limits on nondisclosure agreements (NDAs). Legislators also have cited the #MeToo movement in passing legislation to improve the testing of rape kits and to extend the statute of limitations for victims who want to file civil lawsuits against their abusers. And nearly every legislature in the county has reexamined its own policies for dealing with workplace harassment.
Legislators say serial sexual harassers have used nondisclosure agreements to continue to abuse victims, primarily women. Movie producer Harvey Weinstein, whose downfall last fall largely prompted the #MeToo movement, and a number of politicians have used nondisclosure agreements to continue to harass multiple victims over long periods of time. In many cases, the agreements were folded into financial settlements designed to compensate former employees while barring them from speaking about the harassment and abuse they experienced.
Tweaking nondisclosure agreements to limit how they may be used for harassment claims is an area of law previously untouched by lawmakers, yet six states (Arizona, Maryland, New York, Tennessee, Vermont and Washington) now have something on the books.
“Obviously the #MeToo movement has had a huge impact on our conversations and that’s been terrific, but I’ve been concerned that many movements that are dialogues and open conversations don’t necessarily produce real change, so I wanted to make sure we were seizing the moment,” said Washington state Sen. Karen Keiser, a Democrat who sponsored NDA legislation enacted this year. “The only way I know how to do that in any substantive way is to pass a law.”
While nondisclosure agreements have been a new and popular target in state legislatures this year, approaches to curbing their use have varied widely.
None of the new laws ban the use of nondisclosure agreements for sexual abuse and harassment outright—proponents say some victims might want to protect their privacy after an incident. But some laws do bar using the agreements at hiring, and others ensure NDAs can’t stop victims from coming forward in criminal proceedings.
In Washington, state lawmakers approved a package of bills targeting NDAs that cover sexual abuse and harassment, and employers there will no longer be able to require people to sign them as a condition for employment. Existing contracts will be considered void.
“People were astounded they had waived their right when they signed all that paperwork for that job,” Keiser said. “Most people just skim things over, click the agree button, and go over to the next page. Secrecy is the big bugaboo of sexual harassment and allows it to continue.”
In Arizona, the law enacted this year says the agreements cannot stop victims from participating in criminal proceedings that relate to their abuse, but it doesn’t stop employers from using them at hiring. State Rep. Maria Syms, a Republican who sponsored the bill, said the case against Olympic gymnastics doctor Larry Nassar showed how NDAs were being used to silence victims, with one gymnast facing a $100,000 fine for testifying against him in court.
“Obviously in the most egregious circumstances where you have sexual predators like Nassar and Weinstein, we need to consider a compelling public safety interest at stake here,” Syms said. “This is why the Arizona law is narrowly tailored to further those public safety interests without compromising the constitutionally protected right to enter into agreements.”
The law also bars sexual harassment agreements reached with public officials from including a nondisclosure agreement if victims are paid with tax dollars.
“If you use your own private dollars, that’s your prerogative,” Syms said, “but if you’re going to be using public tax dollars, the public has the right to know the details of any settlement where their money is being used.”
Syms’ law doesn’t bar public money from being used to settle sexual harassment claims, and employment lawyers have argued against doing so, saying that requiring lawmakers to pay out of their personal pockets could limit the chance of victims actually receiving payment.
This year also saw the passage of a number of bills dealing with rape kits, prompting states to either test their backlog of kits or set forth new procedures for making sure they are tested in a timely manner.
Pushed by survivors whose cases have languished, many state audits of evidence lockers have revealed a staggering backlog of untested rape kits. Research from the Joyful Heart Foundation, an advocacy organization that tracks state testing of the kits, found that state audits of inventory show there are at least 155,000 untested kits, though in a dozen states it is unknown how many kits sit untested.
Ilse Knecht, director of policy and advocacy for Joyful Heart, said victims have felt empowered to come forward in an environment that seemed more open to addressing sexual assault.
“It’s part of the same puzzle,” she said. “The rape kit backlog or a rape kit sitting on a shelf is a symbol of a survivor that’s been disregarded, so that certainly has to fit into this #MeToo moment, and it’s a very tangible problem.”
Alaska this year appropriated nearly $3 million to have its more than 3,400 backlogged rape kits tested by private labs, though no deadline has been set.
But not all states were willing to spend that kind of money, and in many cases they enacted changes to how police will handle rape kits in the future, rather than altering procedures for the mounds already sitting on shelves.
In North Carolina, Attorney General Josh Stein, a Democrat, asked for $10.6 million to test the state’s more than 15,000 untested kits while using existing funds to cover the cost of building a tracking system for rape kits. The Republican-controlled Legislature gave approval to start the tracking system but denied the funding.
Although the 15,160 figure is the result of a Legislature-required audit of North Carolina’s law enforcement agencies, state Rep. Ted Davis, the Republican who sponsored the narrow bill that eventually passed, said he opposed funding to test the kits without more solid numbers on how many untested kits existed. Ninety-two percent of state agencies responded to the audit.
Davis said in an interview that it was important to “get a grip on how many rape kits actually need to be tested because you will not have to test a kit where the defendant [pleaded] guilty, or where the prosecuting witness is refusing to testify, where defendants have died. … Let’s get the system in place to see what we have, and that argument about why we should and why we should not [test the kits] can be at a later date.”
Proponents for testing rape kits argue it’s important to test all kits, unless the victim is opposed, because even in cases where someone has pleaded guilty, the evidence could be used to solve other open cases where a rapist’s identity is unknown. DNA also can be used to exonerate those who are wrongly convicted.
“What this work is proving, and this is very startling but also a big opportunity, is that many of these people are actually serial sexual assaulters,” said Alaska state Rep. Geran Tarr, a Democrat who sponsored the rape kit legislation there.
Nazneen Ahmed, a spokeswoman for North Carolina’s Attorney General’s Office, said the state lab does not have the resources to test the kits.
Rape kit tracking systems are not just a means for helping work through backlogged kits but also a way to keep tabs on new kits that will inevitably be created.
Missouri, which has a backlog of nearly 5,000 kits, enacted legislation that sets strict timetables for getting future kits to the lab to be tested.
“Sometimes, you know, when you’re licking your wounds it kind of opens the door to some preventive means for the future, and I think that’s exactly what we’ve looked at,” said state Rep. Don Phillips, a Republican and one of the sponsors of the law. “It took somewhat of a tragedy here of how we operated in the past to change how we’ll operate in the future. I don’t think there was any realization that there were that many kits out there that hadn’t been processed.”
Statute of Limitations
States have spent the past several years expanding statutes of limitation for sex crimes. In some states, victims could not seek justice if they didn’t report the assault within a few years of the incident. Now states are lifting or extending the amount of time victims have to file civil suits against their abusers, citing cases such as the revelations of widespread abuse within the Catholic Church. Many people abused as children waited years or decades to come forward.
But such measures remain controversial. In Hawaii, Attorney General Russell Suzuki, a Democrat, opposed efforts to extend the statute of limitations. “Over the passage of time, memories fade, witnesses move or pass away, and documents are lost or destroyed,” he said. “A claimant could conceivably wait to file a lawsuit until the most strategically opportune time to prevent a defendant from defending against the lawsuit.”
State Sen. Maile Shimabukuro, a Democrat, has tried repeatedly to end the statute of limitations in Hawaii. She has succeeded in the past in getting legislators to agree to a two-year window that would lift the statute of limitations for civil suits for sex crimes. But a similar effort failed last year, and she wasn’t expecting any progress this year.
Instead, the bill “glided through,” she said, due to news that at least 34 men, former students of Kamehameha Schools, reached an $80 million settlement after facing years of abuse by the school psychologist.
Kamehameha Schools, an elite, state-funded institution reserved for those with Hawaiian blood, is a point of pride for the state and the alma mater of many of its leaders.
“There’s been so much of a revelation … and I think victims are now feeling like there’s support for them to come forward and speak out,” Shimabukuro said, adding that the process can be particularly difficult for men. “This really brought this into our local consciousness too in Hawaii. It’s not just a Catholic Church thing.”
Within State Legislatures
State legislatures have also been working to police themselves following a wave of resignations of their colleagues following accusations of sexual harassment and abuse.
Nearly every state has some sort of written policy about how to deal with inappropriate sexual behavior, particularly in cases with skewed power dynamics, as is often the case in state legislatures.
Many states approved policies late last year or during this year’s sessions, and some went back and reevaluated existing policies after realizing they weren’t working. That was the case in California.
Despite being one of the more robust policies on misconduct in the workplace, California’s workplace harassment policy wasn’t working.
Late last year more than 140 women signed an open letter to lawmakers saying that California has a pervasive culture of sexual harassment within its political circles.
“A policy really is powerless when set up against a culture that allows sexual harassment to happen,” said state Assemblywoman Laura Friedman, a Democrat. “We seek to come up with policy that also enables culture change, not just about what is written on paper but about peoples’ daily experience and expectations.”
The state plans to use a more dynamic and conversation-based sexual harassment training in the future, along with a separate panel to hear complaints against legislators and staff.
The Legislature also sent out a climate survey to its employees, alerting lawmakers to harassment some staff had been facing at the hands of lobbyists. Legislators are talking about ways to get lobbyists to more seriously examine sexual harassment within their own industry.
Freidman said the climate survey will be conducted yearly to make sure the new policy, unlike the last one, is actually working.
“Sweeping it under the rug is just not an option for people,” she said. “The first [survey] was to find out things but it will also serve as a baseline, so if things are not working well, we’ll hear it from employees.”
Alayna Alvarez contributed to this report.
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