Written submission from Zelda Perkins (SHW0052)

1.      Personal experience of sexual harassment at Miramax

2.      Attempted rape of colleague and events leading to my resignation

3.      Initial experience with legal representation and subsequent advice

4.      Negotiation period and obligations of NDA

5.      Ramifications of signing the NDA & Legal reaction since breaking NDA

6.      Legal recommendations regarding policy and regulation

I worked for the Miramax Film Corporation in their London offices from 1995 to 1998 working in development and production and as Harvey Weinstein’s assistant in the UK and Europe. At 24, I had to resign from the company, citing myself as constructively dismissed due to Mr. Weinstein’s inappropriate behaviour towards me throughout my employment and the attempted rape of my colleague. Our expectation was to prosecute Mr. Weinstein in seeking justice but due to the advice we were given at the time and the absence of any HR framework in the company, my colleague and I were told that we had no option other than to enter into an agreement with Mr. Weinstein and The Miramax Corp., accepting a financial damages settlement and signing a stringent and thoroughly egregious non-disclosure agreement. All of this pre-dates whistleblower protection in English law. My experience through all of the above was at its most distressing and disappointing once we entered into the legal arena. My faith in the integrity of the law was completely shattered leaving me feeling that the very system I went to in order to hold Mr. Weinstein to account in fact protected his and, thus by definition, others' reprehensible and criminal behaviour. I want to call into question the legitimacy of NDAs, the lack of regulation around them and the impact they have if misused or abused.

1.

I started working for Mr. Weinstein in my early 20s fairly shortly after I joined the company as one of several UK assistants. This was my first professional job. Mr. Weinstein invariably carried out business in the UK from a hotel suite usually at the Savoy, or in suites in European hotels when doing business abroad.

Before the first occasion of assisting him alone I was given a warning by a female colleague - I was not warned of what exact behaviour he would display but it was clear that it was par for the course that he would behave in an inappropriate manner for someone in his position. I was advised to keep on a large coat and to always sit in an armchair so that he could not sit next to me.

From the very first time that I was alone with him until the time that I resigned, I was subjected to constant harassment. On nearly every occasion I was alone with him he would go to enormous lengths trying to persuade me into some intimate physical interaction. Attempting to pull me into bed in the mornings when I went to wake him for his first meeting, trying to make me join him in the shower, sauna or bath, insisting that this was perfectly normal, part of my job and in fact how he needed to work and expected to work. On the first occasion that I travelled abroad with him I ended up being forced, as a compromise for not joining him in the sauna, into having to take dictation in the bathroom whilst he bathed. He would regularly expose himself in various states of arousal and put huge amounts of pressure on me to capitulate, usually over several hours and late into the night.

This was an exhausting campaign of coercive, intimidating and frightening behaviour, which appeared rooted in a driving need to assert power and force submission more than for sexual gratification.  I had to devise techniques to deal with his behaviour – but they were nonetheless grueling. He was at this time at the height of his powers in the film industry and wider world and I feel he abused his position of power, age, physicality and gender.

Although I was totally unaware at that time of how many of his employees he had harassed and assaulted, I was very much aware that there was an enormous amount of fear surrounding him and that staff avoided being left alone with him, to the extent that one male executive at the firm would not allow his assistant to go and help Mr. Weinstein when he was in London.

2.

Mr. Weinstein had harassed me but had never succeeded in touching me sexually. When in 1998 a young assistant was employed (who is exercising her right to anonymity), I told her in the interview that there was a likelihood that Mr. Weinstein would behave inappropriately, describing some of the behaviour I had experienced, but adding that as long as she met his conduct robustly she was at no risk - as this had been my experience. I felt it was extremely important to warn her as even though the warning given to me had been subtler, it meant that I was not as afraid of the consequences of rebuffing him and I wanted her to know that she could come to me if she was uncomfortable.

She attended the Venice film festival to assist me with Mr. Weinstein - the festival is held on a small island accessed by boat approximately 25 minutes away from Venice itself. She had briefly met Mr. Weinstein with me at the Savoy ealier in the month. Venice was only the second occasion she met him and the first occasion she was alone with him. He sexually assaulted and attempted to rape her during the course of this second meeting. She told me this in the morning and I was utterly horrified and shocked, as I had never felt he was capable of physical assault or attempted rape. She was in an incredibly distressed and clearly traumatized state and I immediately confronted Mr. Weinstein, he denied her allegations but also too readily agreed to excuse her from his presence for the rest of his trip.

On returning to the UK I went to my immediate superior and reported his behaviour. I was completely unaware of what an HR department was at the time or if one existed within the corporation as we had no HR personnel or information in the UK office.  At this point I was advised by my superior to seek legal advice. There was no mention of recourse or redress within the company structure or HR.

3.

Obviously, we had very limited financial resources. On seeking legal advice and engaging Simons Muirhead and Burton, it was made clear that although I had a case regarding gross sexual harassment and my colleague regarding sexual assault and attempted rape, we had little, in fact no realistic chance of following this through the courts due to the disparity of power and wealth between Mr. Weinstein and his company, and ourselves, and the lack of physical evidence. Also, that as the incident had happened in Italy, the UK police would not be able to directly help. Being offered little viable recourse I suggested we reported the incident to Disney, who were the parent company of Miramax, and would be large enough and presumably moral enough, having an open affiliation to Christianity, to take these allegations seriously and be able to back us. We were again advised that we would run the risk of our reputations and our families being publically and financially destroyed by both companies, made to look like unreliable witnesses, liars, mentally unstable and our personal and family histories dragged through the papers. The only option offered to us was to make a damages claim. However, I was adamant that we wanted remedies that would address Mr. Weinstein's behaviours. I repeatedly asked for other options and felt utterly helpless through the lack of solutions through law.

At this point I was totally confused by what seemed a lack of ability, through the law, to bring a criminal action to light and thus seek justice, and that our lawyers were apparently giving us the correct advice which appeared ethically lacking, if correct legal practice. I was resolute that money must not change hands and if our ONLY option was to enter into a compensation agreement then the agreement had to recognise and stop Mr. Weinstein’s behaviour and create a framework to protect employees in the future. However, it we were told that making a financial demand was the standard and traditional opening to starting a conversation with the ‘opposition’ – Mr. Weinstein and his company’s not insubstantial legal representation, the global city law firm Allen and Overy - and that they would not come to the table without this approach.

4.

It seemed that as we could not uphold the law through legal process it was imperative that the agreement we entered into was as effectual as possible in curtailing Mr. Weinstein’s behaviour and, through its terms and financial pay off, clearly indicate the serious nature of the information that we would have to agree to withhold. It was suggested to us that we were entitled to request a year’s salary as compensation for loss of employment. However, with our above opinion in mind we requested a figure of £250,000 to be shared equally between us, a substantial donation to a rape charity and our legal fees to be covered. We were advised that our request was utterly unrealistic and that we would lose the opportunity of any sort of agreement if we asked for such a sum. However, the request was accepted and we were immediately thrust into a week of aggressive interrogation and negotiations. These were carried out by representatives of Allen and Overy and the Miramax lawyer from the U.S. office in the City offices of Allen and Overy.

This was a bewildering experience that was akin to being under siege with grueling sessions lasting many hours, on one occasion running from 5pm until 5am. Enormous amounts of pressure were put on us and our representatives which, considering we were the victims of the situation, was inappropriate, intimidating and frightening. The obligations put to us rigorously demanded total confidentiality including clauses stipulating that we are to give 48 hours' notice to Allen and Overy in the case of any legal process; to use our best endeavour to avoid disclosing any information if a criminal or civil case were to arise in the future; to actively assist Mr. Weinstein’s legal team if they contest such a case. We were not allowed to speak to a therapist or any other legal representation we may acquire about the incidents we had experienced unless the they agreed to sign a confidentiality agreement, or to speak to HMRC or our accountant with regard to the pay out. In fact I was made to feel like I was the wrong-doer by disclosing Mr. Weinstein’s behaviour. This truly manifested itself in the most traumatic negotiations when Mr. Weinstein’s legal team attempted to insist that I named every individual I had told any part of the events, running from the assault down to the fact we were in legal negotiations.

In turn we secured several significant undertakings to my demands from the Weinstein team. These included the following; Mr. Weinstein must attend psychological therapy for a period of 3 years with a therapist approved by myself and with my attendance at the initial session; that Miramax introduced a failsafe HR policy with three complaint handlers one of which had to be an attorney and that all employees were made aware of their rights; that if Mr. Weinstein made a financial settlement in the following two years that the company were bound to inform Disney and disclose our agreement OR fire Mr. Weinstein from the company. These were all part of our attempt to halt his behaviours.

One of the most oppressive clauses implemented by Allen and Overy was that my colleague and I were not allowed to receive or keep a copy of our agreement or any paperwork pertaining to it. This has proved so enforceable that even with the current allegations surrounding Mr. Weinstein and with new legal representation, neither of us have been able to obtain a copy, not even to provide to this inquiry, so the full content and egregious nature of the agreement is not clear.  Ultimately we agreed to enter into the contract because of the important obligations Mr. Weinstein agreed to uphold which should have stopped his behaviour and safeguarded future employees. However, it was clear that the payment was hush money to prevent us disclosing criminal behaviour and that he and Miramax ignored the terms of the agreement and have not felt bound by it.

5.

Once this contract was signed, my colleague and I were prevented from discussing it even with each other.  As a result of this we never saw or spoke to each other again until late 2017. We were left in a position where we did not feel safe to discuss the trauma of the events with a therapist as we were bound in the agreement with the responsibility of being considered in breach of our contract if our therapist ever disclosed any information about the incident. We also could not speak to any member of our family or friends and in my case, I was also bound to actively assist Miramax in preventing the people I had described that I had made disclosures to, from making any revelations. It also stated that Miramax would cover any costs relating to that. I was left with an economic "sword of Damocles" hanging over me. I couldn't and cannot afford to fight him over his breach of contract and I felt utterly defeated.

IAfter this process I was emotionally and psychologically drained, exhausted and disillusioned, having lost total faith in the legal system. I found it impossible to find employment in the film industry due to rumour’s that I could not combat with the truth and the general fear in the industry of being in bad favour with Mr. Weinstein by employing me. I felt that I was left with no option other than to leave the UK and attempt to reconstruct life somewhere where I would not be in danger of breaching the contract and may find gainful employment in a different area. I believe that this evidence provides good example of the onerous way NDAs can be manipulated legally by those with power and money to continue abuse of the powerless. I also strongly feel that I am still suffering abuse from this agreement by having control exerted over my life by the very fact that even now, I am not able to legally obtain a copy or, despite his breach of the agreement, to identify his wrongdoing without being imperiled.

To add to this, once I publically broke the agreement in October 2017 I found that I was unable to find legal representation from any of the reputable large law firms that I approached, the obvious suspicion being that they could not be seen to advise me as they were in conflict as they produced agreements like this for their clients. Unlike many, I am in a fortunate position to have helpful connections and was able by personal introduction, to find a QC and solicitor who could assist me - but this is at the age of 45. At the age of 24, I had no such resources available to me, and the huge economic and professional power differential made my wish to seek justice, and hold Mr. Weinstein to account for his flagrant abuse of power and responsibility, impossible to bring before the courts.

There is clearly a place for the mutually beneficial use of NDAs in many cases but it is also very clear that intense scrutiny of the legal practice around NDAs is necessary and rigorous regulation that protects the vulnerable and creates parity of negation in these cases. What concerns me and I hope concerns this committee is the abusive use of NDAs to cover up criminality or other serious wrongdoing.

6.

I would recommend a number of amendments and changes to make the use of Non-Disclosure Agreements less oppressive.  Almost invariably there is an inequality of bargaining position between the parties and it appears that the current suite of checks and balances are not working effectively to prevent abuse. It appears that Non-Disclosure Agreements are now being routinely used to cover-up criminality, discrimination, wrongdoing including legal, regulatory and administrative breaches, as well as serious breaches of moral rectitude. It also seems that this is happening in the workplace, with the involvement of company lawyers, despite existing whistleblowing protections in place to prevent this.

Whilst there is clearly a place for Non-Disclosure Agreements, it seems appropriate that the following arrangements be put in place/strengthened to address inadequacies' in the current regime:

1.                       Where there is any allegation that could amount to crime or serious wrongdoing then the individual against whom the allegations are made should sign the Non-Disclosure Agreement personally; and

2.                       The Non-Disclosure Agreement should also be approved by the Chief Executive Officer and/or the Board.

3.                       Should a similar allegation (e.g. discrimination, sexual assault, harassment Etc.) be made on more than one occasion against the same individual, then the matter should be recorded on the individual's human resources record, the board must approve their continued employment (or if a board member then the shareholders) and any breach of law or regulation must be reported to all appropriate authorities.

4.                       If a criminal offence or serious regulatory breach is made out on its face then an employing company must report that matter to the police/appropriate regulatory authorities e.g. Police, SFO, FCA.

5.                       Non-Disclosure Agreements which would otherwise preclude matters that would otherwise qualify as public interest disclosures should be regarded as void at law but any payments associated with them (paid to an accuser) should be non-refundable. There is a pressing need for other consequences/penalties to deter employers seeking to enter into or enforce these types of void agreements because there doesn't seem to be anything in place today.

6.                       Payments under non-Disclosure Agreements which relate to matters that qualify as public interest disclosures should not be tax-deductible as a business expense.

7.                       Professional rules for solicitors should be amended by the Solicitors Regulatory Authority, so that it is inappropriate to require solicitors to give undertakings of privacy or confidentiality collateral to any obligations of their clients.

8.                       It should be a breach of law to preclude any party to a Non-Disclosure Agreement from holding a copy for their own records.

9.                       It should be illegal and a breach of professional rules for solicitors and barristers to include any provision in a Non-Disclosure Agreements which precludes any party from disclosing matters in a Non-Disclosure Agreement to Inland Revenue, therapists, medical practitioners, priests, other professional advisors, or other proper authorities or otherwise in accordance with whistle-blower legislation.

10.                   HR Policies available must contain advice & information available to an employee, as to the limitations of a proper Non-Disclosure Agreement

Amendments of the Criminal Law

1.                       Under the 'long forgotten' and unused Section 5(1) of the Criminal Law Act 1967, it is a crime to accept money in return for withholding information which could be of "material assistance" in prosecuting an offender.  This was a codification of the old Common Law offence of Misprision of Felony - a law that is still applied in its original form in other countries, without the constraints found in British statute law.

2.                       I submit that the law was wrong to target victims who accepted the money, but that perpetrators and their lawyers who offered it, and negotiated the Non-Disclosure Agreement, could only be liable as accomplices[1]. 

3.                       Unfortunately prosecutions are rare, if not impossible, because the approval of the director of public prosecutions is required to begin such a prosecution. In the circumstances, the offence should be amended so that a person who makes payments which have the effect of disincentivising the reporting of what would be allegations of criminality suffers criminal consequences, along with the payee, and any advisor would be a co-conspirator.  It is also recommended that the prohibition on prosecutions without the consent of the DPP should be removed.

4.                       Indeed, the DPP should be invited by the Select Committee to consider the issuance of guidance making clear that she will consider prosecuting perpetrators and their solicitors as accomplices if they draw up illegal Non-Disclosure Agreements.

5.                       Non-Disclosure Agreements which would otherwise qualify as public interest disclosures should be regarded as void at law but only payments associated with them should be non-refundable.

What is happening in the USA?

1.                       Across the country, elected officials are proposing legislation to prohibit the use of taxpayer money to settle sexual harassment claims brought against government employees.

2.                       Such a proposal is intended to hold individual harassers accountable, was a major component of a package of reforms proposed in New York by Gov. Cuomo; similar bills are under consideration in California, Pennsylvania, Illinois, Michigan, New Jersey and elsewhere.

3.                       These bills sound attractive because, why should taxpayers be on the hook and pay for illegal behavior (whether sexual or otherwise) by public employees?

4.                       Whilst the agreements could be struck down if expensively challenged in court. Importantly, they are just bad policy and so a decision on secrecy should be in the hands of the victim.

5.                       To wit: effective last week, Union Settlement – a Harlem based organisation – made clear that it will no longer include non-disclosure agreements in any settlements of discrimination cases unless requested by the victim, and the business will not enforce any non-disclosure provision included in past settlements

6.                       Additionally, House of Representatives members announced the introduction of two new bills on Monday designed to combat what they describe as the, “corporate culture of secrecy” that helps protect workplace sexual harassers.

7.                       The House Representatives promoting the legislation entitled the bills as the, (1.) "Ending Secrecy About Workplace Sexual Harassment Act", and the (2.): "No Tax Deductions for Sexual Harasser Buyouts Act".

8.                       Focusing on the public interest, one of the US House Representatives, Carolyn Maloney, is reported as saying, “With total secrecy, companies have absolutely no incentive to focus on preventing sexual misconduct if they know they will never be held accountable. But with these two bills, we flip the incentive structure from one of cover-up to one of prevention.”

Conclusion

I have no doubt that the courts would find Non-Disclosure Agreements designed to cover-up crime to be unenforceable, but the whole object of these agreements is to intimidate victims and survivors like me from going to court or speaking out to the appropriate authorities  - through fear of being sued for speaking out. You can give up your right to free speech in return for money, and settle disputes and discrimination relating to your employment, but there must be limits. Citizens must be allowed to expose crime and malfeasance or anti-social behaviour so that these agreements operate in a manner which will not intimidate people from speaking out about wrongdoing of any kind. We must not make free speech mean expensive speech.

March 2018