Zelda Perkins is a brave woman and an angry one. In 1998, she accused her boss, the now disgraced movie mogul Harvey Weinstein, of sexually molesting her junior assistant, Rowena Chiu, in a Venice hotel room.
The 24-year-old Chiu was too traumatised to report the assault to Italian police, so back in London Perkins hired a lawyer and went into battle. She wanted Weinstein, who co-founded the entertainment company Miramax with his brother Bob, in court for criminal assault but was told it wasn’t possible without a police report from the country where it happened.
After going several bruising rounds with the Miramax legal team, including an all-nighter finishing at 5am, the two women each accepted a payout in return for signing a non-disclosure agreement (NDA). The legal equivalent of a scold’s bridle, the NDA bought their silence, prohibiting them from ever speaking about any aspect of the settlement to anyone at all. Breaking the agreement risked prosecution and imprisonment.
But in 2017, Perkins did exactly that. She told her story to the media, including The New York Times, The New Yorker and the Financial Times. As investigations into Weinstein’s behaviour gained traction on both sides of the Atlantic, more of his alleged victims came forward to break their enforced silence, but Perkins was the first. Not content with that, she reported Weinstein’s chief London lawyer, Mark Mansell, to Britain’s Solicitors Regulation Authority (SRA) for the terms of the settlement negotiations and the way they were conducted. The SRA agreed there was a case to answer and referred Mansell to a disciplinary tribunal.
In March 2018, Perkins testified before two British parliamentary select committees and a departmental investigation into the use of NDAs in harassment cases. Now she has plunged back into the fray, along with several other formidable women, launching a public campaign, “Can’t Buy My Silence”, that calls for legislation to ban the use of NDAs in cases of harassment, abuse and bullying unless the victim requests confidentiality. Only cases involving trade secrets or intellectual property should properly be subject to secrecy, they argue.
“I’ve done everything through the right channels, and nothing has happened…They are dreadful, demoralising things and there is no justice in them.”
The battle with Weinstein’s lawyers had been deeply shocking for Perkins and reliving it 20 years later in the eye of the #MeToo storm took its toll. Why put herself through all that exposure again? “Because I’ve done everything through the right channels – given evidence to the government about the iniquities of NDAs – and nothing has happened,” she says. “And because of all the people I’ve met who have lost their physical and mental health after signing NDAs. They are dreadful, demoralising things and there is no justice in them.”
We are talking on the terrace of her cottage tucked away in the Wiltshire countryside, a few miles from the cathedral city of Salisbury. It has been her home since the age of three, raised here by her grandparents after her mother died. The lanes are a froth of meadowsweet and the pretty garden is stocked with summer perennials. She nods towards the beds and the herringbone brick paths: “That was a lockdown project.” Did she lay them herself? “I did; it was a dark time and it helped.”
At 22, and in New York with a boyfriend, a chance meeting landed Perkins a job as Weinstein’s assistant at the London office of Miramax. “He was fun, engaging, super intelligent and a manipulative player,” Perkins says of Weinstein. “He would bring me into important meetings and say, ‘This is Zelda, she’s brilliant, I do nothing without her approval.’ Then I knew I would pay for it later: he’d be in his suite, semi-naked, and ask for a massage.
“I was very boundaried with him because I wasn’t afraid and I didn’t need the job. But he fought cleverly; I’d have to up my game massively to get out of the room. Mainly I laughed at him. One time he came in with nothing on, semi aroused.” She claps her hands over her head. “I said, ‘Oh Harvey, do I really have to look at that wrinkly old dick again?’ He was like, ‘Is it wrinkly??!!’ and ran away and put his pants on.”
In meetings with Miramax lawyers after the assault on Chiu, Perkins had planned to use the incident as leverage to get Weinstein to agree to therapy. “I just wanted him to stop the behaviour.” But her lawyers insisted she should make a financial demand to kick off negotiations towards a settlement.
“We always had to go to the Allen & Overy offices [Weinstein’s lawyers], always late in the evening. We were made to feel like criminals, not allowed pen or paper, not allowed to go to the loo unaccompanied. It was like a siege; the fear and paranoia were huge.”
“The film industry is rife with rumour and I was basically untouchable, damaged goods.”
The two women ended up accepting a payment of £125,000 each and signing a 34-page document agreeing not to speak about the case to anyone. Perkins has never had a copy; her own lawyers refused to give her one and years later, when she reported Mansell to the SRA, she discovered her lawyer had signed an undertaking that it wouldn’t be shown to anyone else.
“Basically the whole thing had been NDA’d in perpetuity,” she says. (Mansell never faced a tribunal; initially he claimed he was medically unfit to appear and has since retired.)
In 2001, tired and disillusioned after the rigours of the legal process, Perkins took off to Guatemala to work with horses; she had been a talented event rider as a child. Returning to England five years later, she found no one would employ her.
“The film industry is rife with rumour,” she says, “and I was basically untouchable, damaged goods.” She did eventually get a job as a producer with theatre impresario Robert Fox and ended up working with David Bowie, her all-time hero, on the musical Lazarus, completed shortly before his death.
In 2017, journalists in the US had begun investigating rumours of Harvey Weinstein’s predatory sexual behaviour. As reporters followed leads, Zelda Perkins’ name cropped up more than once, and in August that year she found herself sitting over lunch in London with Jodi Kantor, one of the two New York Times staffers who would go on to break the Weinstein story.
Perkins told Kantor she was no longer interested in nailing Weinstein; instead she wanted to publicly question the fairness of the whole settlement system, to prevent other women from being pressured to sign away their rights.
“I gave her everything, not on the record but things that could be corroborated,” she tells me. “But when my account was published it felt toothless. I suppose the paper was trying to protect me.”
She had been contacted earlier by journalist Ronan Farrow, who was also pursuing the Weinstein story for The New Yorker. Now she emailed Farrow and told him, “I’m ready to talk.”
“I’m pumped up,” she recalls. “I’m the centre of my own ego here. I ring my lawyer, who says he wouldn’t have my case notes any more; they’d been destroyed. He was laughing at me. I rang loads of lawyers; they all took my call and they all stonewalled me. I called a lawyer friend who said, ‘You must be f…ing joking. No one will want to be associated with you. All their important clients will realise they are not safe.’ ”
As well as talking to Farrow, she went to the Financial Times: “I wanted the men in suits to hear the story. I wanted all those net-worth buggers to hear it. The paper was keen but very windy [nervous].” The story was held but finally it was ready to run as the big read on Monday, October 23, 2017.
On the Sunday night, Perkins got a call: they couldn’t print; Weinstein was taking out a super injunction [a legal demand that a party, such as a media organisation, refrain from publishing potentially defamatory material]. “But in the end they published anyway and everything went bananas.” She had broken her NDA big time. “But Harvey never came after me.”
Somehow while relating all this, Perkins has managed to produce lunch and we eat outside, her cat stretched comfortably on the table between us. She admits she is dreading the exposure that a public campaign will bring. “But it has to be done. For years non-disclosure agreements have been a covert weapon, designed to silence victims and protect perpetrators.”
“For years non-disclosure agreements have been a covert weapon, designed to silence victims and protect perpetrators.”
Before I go, she introduces me to her two horses, nodding sleepily in their stables away from the heat, and to her small flock of sheep. One is limping, possibly from flystrike, and needs attention. I leave her pulling on overalls and boots, wielding clippers and spray. We agree to keep in touch.
Standing shoulder to shoulder with Perkins on the campaign podium is a woman with her own chilling experience of the power of an NDA to protect both a perpetrator and their employer. At a Sydney Law School event in July this year, Professor Julie Macfarlane, a legal academic from Windsor University in Ontario, Canada, told her story to a rapt audience.
In many cases, a confidential settlement will allow the perpetrator to remain in his job without fear of exposure.
A colleague, well-known for inappropriate sexual behaviour with students, had left the university after multiple reports of harassment and abuse of power. A law school to whom the man had applied for a job got in touch with Macfarlane to ask if she knew why he had left Windsor. “Because he’s a sex pest,” she said. The man sued her for defamation and – because the settlement he had reached with his former employers was subject to an NDA – Macfarlane was refused access to the documentation that would substantiate her claim.
“This man had been quietly let go to another institution, full of young vulnerable young female students,” she told her audience. “There is a name for this common practice: it’s called passing the trash.”
In many cases, a confidential settlement will allow the perpetrator to remain in his job without fear of exposure. Macfarlane introduces me to a young woman we’ll call “Kira”, who was a contract manager for a US tech company when she was sexually assaulted on a business trip by a male colleague. She reported the incident and was put on paid leave pending investigation. She says her pay only lasted for six weeks but it took a year for the company to deal with her complaint.
“By this time, I was in debt to friends and family, had maxed out my credit cards and my mental health was in shreds,” she tells me. As lawyers on both sides thrashed out a settlement, Kira was put in a separate room, and only allowed to speak through her lawyer. She left with a year’s salary and an agreement not to speak about the case to anyone. Her attacker remained in his post.
“By this time, I was in debt to friends and family, had maxed out my credit cards and my mental health was in shreds.”
AMP Capital executive Boe Pahari may have thought he, too, had got off scot-free when his employers settled a claim of sexual harassment against him. His alleged victim, Julia Szlakowski, left the company with a payout and Pahari stayed. But, crucially, Szlakowski did not sign an NDA, so when Pahari was promoted three years later, she was able to speak publicly about the case. Pahari was subsequently demoted, along with two board members who had supported him. (Boe Pahari has since resigned from AMP Capital.)
The higher up the food chain perpetrators are, the freer they feel to practise a kind of droit de seigneur, perceiving themselves to be untouchable. Melbourne lawyer Amanda Watt advises corporate leaders on workplace solutions and, as she states on her firm’s website, “much of my work is highly delicate and confidential and can involve matters relating to behaviours exhibited by those at the top of an organisation”.
“Few people want to tell their story in the pages of a newspaper but they do want to tell their family and friends. It’s about acknowledgement and the ability to process and heal with the support of others.”
When I call her, she tells me that, thanks to pressure from initiatives such as Male Champions of Change and some high-profile cases of harassment, things are beginning to shift. “Companies would say, ‘We’ve paid our money, now we want the matter to be finished.’ But they are starting to realise the shutting down of these cases means perpetrators can go and do it again. I know from the panels I’m on that boards are having these discussions. Only when there is a clear message from the top that sexual harassment will not be tolerated will people come forward, confident that a perpetrator will be dealt with.”
Watt says secrecy around settlements brings more harm to victims: “It is the gagging that causes further trauma. Few people want to tell their story in the pages of a newspaper but they do want to tell their family and friends. It’s about acknowledgement and the ability to process and heal with the support of others.”
When Australia’s Sex Discrimination Commissioner Kate Jenkins chaired the 2020 Respect@Work inquiry into sexual harassment, she heard testimony from victims who had signed NDAs. “Many told us they had not wanted to sign one but felt they had no other option,” she said in her report, released following the inquiry. “We were struck by the fear, anger and raw emotion that witnesses expressed and still felt about their experience years, even decades, after signing. Only one individual we heard from said that settling with an NDA had brought a broadly positive outcome for them.”
Jenkins is something of a poacher turned gamekeeper, having worked for 20 years as a corporate lawyer for large companies. “I don’t think I ever settled a matter of sexual harassment without a confidentiality clause,” she admits.
“Most of them were just blanket statements – easy drafting for a lawyer: ‘No one will ever say anything about this. We are buying your silence.’ My view now is what companies should be saying is, ‘We are paying you this money because we didn’t protect you from harm.’ ”
Jenkins notes that even after the storm of #MeToo revelations, data from a 2018 survey into sexual harassment in Australia revealed only 17 per cent of respondents who had been harassed made a complaint. “This didn’t surprise me; in Australia the culture is to get along, take a joke, don’t be a whinger. So many people said to us, ‘I don’t want to make a fuss. I just want it to stop or for someone else to make it stop.’ ”
The focus must be on prevention, Jenkins says, but when a complaint has been made and a settlement reached, there should not be a blanket ban on speaking about it. A complainant should be free to report to police and other institutions and an NDA should only be imposed at their request. “We need to find a more sophisticated approach that recognises confidentiality is important but not for corporations to hide behind, and that some degree of transparency is essential.”
Jenkins’ recommendations for modifying NDAs are with the federal government for approval but they only go as far as “guidance” and possible eventual “regulation” for companies and lawyers conducting settlements, and stop short of legislation. Campaigners in other jurisdictions are pressing for a change in the law.
In June this year, Republic of Ireland senator Lynn Ruane introduced a bill banning all non-disclosure agreements relating to sexual harassment and discrimination unless requested by the complainant to protect their own confidentiality. Even then the agreement would enable the victim to waive the right to confidentiality in the future if they wished. “There is so much silence around it because people are afraid to speak,” she tells me. “But behind the silence there is a roar.”
In August, Californian legislators passed the Silenced No More Act, which, if signed into law, will protect workers negotiating settlements. Even if they had signed a “non-disparagement” agreement, they’d still be free to speak up about unlawful harassment and discrimination. And in Canada, Senator Marilou McPhedran will introduce a bill into parliament later this year proposing legislation that prevents NDAs being used to conceal evidence of abuse or harassment and allowing them only where the complainant has requested privacy.
Meanwhile, at the “Can’t Buy My Silence” campaign, Zelda Perkins tells me stories from victims have been piling up. “We have created a platform where individuals who have signed an NDA or are facing the prospect of one can share their experience in a non-identifying way,” she says. “We’ve built a huge resource of information from lawyers and academics and produced a global tool kit so others around the world can lobby for an end to the abuse of NDAs.”
On the morning of the campaign launch, the chair of the Women and Equalities Committee, Conservative Party MP Maria Miller, introduced a private members’ bill restricting the use of NDAs, and that afternoon Perkins gave a talk to MPs. “Hopefully it will all build from here,” she says.
“Today, with heightened public awareness, there would be significant reputational damage to an institution or corporation going after someone for breach.”
With NDAs getting an increasingly bad press, will those who have signed them in the past be emboldened to break them? And what might be the fallout?
Julie Macfarlane says NDAs create such fear that they are still rarely broken. “But the reality is that today, with heightened public awareness, there would be significant reputational damage to an institution or corporation going after someone for breach, plus the risk that a court might find the NDA had been signed under duress or without full comprehension, which are grounds for voiding a contract. However, there have been instances of corporations going after people for breach and successfully recovering the compensation that was paid. Would that still happen today? Legally it is a gamble and generally a person’s fear of breaching wins out.”
Next year will see the release of She Said, a film based on The New York Times’ investigation of Harvey Weinstein. Perkins is played by Samantha Morton: “I only have about 10 lines,” Perkins says. “It’s pretty weird but wonderful to be played by such a brilliant, Oscar-nominated actor.”
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