It’s one thing when lawyers use nondisclosure agreements in lawsuits over slips and falls, car wrecks or workplace injuries.
It’s become entirely something else when they’re used in settlements of cases involving sexually abused children where the agreements protect institutions from damaging and embarrassing information.
Lawmakers in Texas, Missouri, Alabama, Tennessee and California have enacted laws so that exploited children are no longer bound to settlement agreements ensuring their silence.
There are similar bills pending in Georgia, Kentucky and Oklahoma.
Now, Kansas legislators are being asked to enact similar legislation that would make any nondisclosure agreements in child sexual abuse or human trafficking cases unenforceable.
It’s a legal tool that that Elizabeth Phillips said contributed to the death of her late brother Trey Carlock, who died by suicide after he was sexually abused at a summer camp in southwest Missouri.
While her brother’s abuser was sentenced to two life terms in prison plus 30 years for sexually molesting boys, Carlock still struggled after he was silenced in a civil settlement with the summer camp that included a nondisclosure agreement.
“He died by suicide in 2019 because he could not heal after his voice was taken on top of his innocence,” Phillips told the House Judiciary Committee on Thursday afternoon.
Phillips has emerged as a national leader in an effort to get states to ban nondisclosure agreements after her brother died in 2019 at the age of 28.
“Kids should not be put under contracts,” Phillips said.
“Childhood sexual abuse is shaming and silencing enough on its own, survivors should never be forced to sign away their voices in exchange for settlement dollars they need for a lifetime of healing,” Phillip said.
Kathryn Robb, director of the Children’s Justice Campaign at the children’s advocacy group Enough Abuse, called nondisclosure agreements in these cases “improper.”
“Historically, they were used to protect confidential business data, trade secrets and sensitive work data, and that, of course, makes sense,” she said.
“But they were not created to cover up sexual crimes and wrongs against children,” she said. “NDAs for child sexual abuse are contrary to sound public policy, and they’re dangerous for children.
“They silence victims and survivors,” she said. “It takes victims decades to come forward and find their voice. NDAs just take their voice away.”
Further, she said the agreements endanger children by shielding sexual predators, covering up prosecutable crime concealing the negligent acts and practices of various institutions.
Another witness who testified before the committee gingerly related a story about how her teen daughter was abused by a 41-year-old teacher at Trinity Academy in Wichita.
The woman told lawmakers that the school sought a nondisclosure agreement resulting from the case involving Matthew McFarren, who was sentenced to 34 months in prison after pleading guilty to one count of unlawful sexual relations with a student under 16.
“They wanted the harm that was perpetrated on her to be kept dark,” the woman said.
“She was offered millions of dollars. She refused that money. She said, ‘I’m going to choose truth over money,'” the woman said.
“True healing for a survivor cannot happen in the dark. Silence does not bring restoration. Secrecy doesn’t bring justice,” she told the committee.
“She deserves adults that name evil for what it is. She deserves a law that would stand firmly on her side; future children deserve the same protection.”
Republican state Rep. Bob Lewis, a Garden City attorney whose practice has been focused on helping crime victims seeking restitution from criminal defendants, said the bill is significant in helping abuse victims recover.
“Child sex abuse is about control; it robs the child of his agency — the ability to make choices and to act on his own volition,” he said.
“To recover their agency, survivors need to speak the truth about what happened to them.
“NDA’s silence them, hinder recovery, and again rob them of their agency.
“By making NDA’s unenforceable in settlements of cases, the bill supports survivor recovery.” he said.
