Adjunct Professor Joel Cohen co-authored an op-ed for The Hill about sexual assault victims choosing to settle their claims privately.
Although the dust of the Harvey Weinstein sexual assault scandal has not even begun to settle, the amalgam of that dust could choke a horse.
Some, including my friend Professor Bennett Gershman, astonishingly, have posited that victims must tell their stories if they want to be compensated, and that their failure to do so victimizes others. Not only that, but to allow one to settle privately represents a public hazard. The headline of his Daily Beast article, which actually urges criminalizing confidential payments, says it all: “After O’Reilly and Weinstein, Paying Rape Accusers to Stay Silent Should Be Illegal.”
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Let’s put this in perspective – first, women are not to blame. And it’s their choice – not mine, not yours, not society’s – to decide whether to come forward. Imagine the potential for extraordinary, and very public, backlash. Could Weinstein have used the media to ensure the women he preyed upon were dragged over the coals, exposed for the “liars” they “obviously” were? Would they have ever worked in the industry, or would they have landed at some obscure community theater? Going up against a giant, is not something many would choose to do.
I can’t go inside the minds of women who are harassed, why some choose to speak out and others elect to settle confidentially (it is, of course, unlikely that any harasser, or employer, would settle without a confidentiality agreement). But I certainly recognize that, for some, a confidential settlement may be the only realistic choice. And not only because of the genuine fear of reprisal. There are those, I imagine, who want to keep private acts private, for many reasons. Not only because she may see herself as guilty or complicit (even though, objectively, she was not.) But did she flirt? Did she dress in just that way to get his attention? At bottom, the decision to settle is nuanced; it’s complicated and the factors will be different for each person.
So can there be a mechanism for a woman to sue and remain anonymous, while holding her harasser (or attacker) publicly responsible for his actions?