Abuse in the Arts: The Evolving Role of Contracts as a Means of Concealing and Furthering Misconduct

Leonardo Giorgini
Rescue in the Arts
Summer 2025

Abuse in the Arts: The Evolving Role of Contracts as a Means of Concealing and Furthering Misconduct
	This essay explores the way contracts are used by figures in the entertainment industry who wish to engage in or cover up wrongdoing, especially relating to sexual misconduct. Tragically, contracts have been used to control how individuals can behave publicly and privately, whether and when they can have children, what procedures they have to undergo, and whether they can speak about what they have seen or suffered. While recent changes in law have weakened these provisions, there is still much work to be done in rooting out abuse and creating a safe environment for all.
  The main form of contract that is relevant nowadays is the non-disclosure agreement (NDA). Legally, this contract binds a person to not speak about one or more incidents to others, in exchange for something of value. However, they are often coupled with a wide disparity in resources between the parties, as well as the fact that younger parties may not know all of the rights they possess and all the possible avenues they are signing away. As a result, NDAs are often used by abusers to pay off their victims, giving away amounts of money that are insignificant to them but which may have more value to a person of fewer means, effectively buying their way not only out of legal consequences, but also out of the social stigma of being a predator.
  As a whole, the entertainment industry is susceptible to abuse, for a multitude of reasons. The first is that the allure of the silver screen brings in a constant supply of young people desperate for a chance, whose desires can be exploited by threats or promises. Second, there exists a wide gap between those at the top and everyone else, which enables the former to utilize their vast resources and connections to make themselves virtually untouchable. Third, well-connected Hollywood figures have associates in the media and in the publicity industry, enabling them to control the narrative, and paint themselves in a flattering light, describe a whistleblower as “difficult” and thereby render her unhireable, or even prevent a story from coming to light. And fourth, the public idolizes movie stars, meaning that they are willing to forgive or ignore behavior that would otherwise be considered unacceptable. Put together, these factors render Hollywood a dangerous place for those in a position of dependence, especially young women.
  The role of the NDA in this landscape took off in the 1990s, although as a legal tool they had existed for much longer. Originally, NDAs were used primarily to protect proprietary information outside the context of the arts. Later on, Hollywood adopted them to prevent the leaking of casting decisions, film and show plots, and business deals. When used for those purposes, NDAs are not inherently coercive or worrisome: a studio undoubtedly has an interest in preserving secrecy of these kinds of decisions until the right moment, the matters covered by the agreements relate solely to business, and those subject to the NDAs agree in advance, knowing exactly what they can and cannot say in public. [1] However, starting in the mid-20th century and accelerating in its last decade, NDAs became commonplace not only to protect specific business-related interests, but also to strictly limit what employees could reveal about their experiences. Additionally, perpetrators of sexual misconduct combined NDAs with financial settlements, offering a two-in-one solution: paying off an accuser for their silence and then legally enforcing it with a contract, with the possibility of ruinous financial harm in the event of a violation. (Technically, an NDA does not prevent a person from reporting an incident to the police. However, given the high standards needed to bring a case, let alone secure a conviction, and the reluctance of prosecutors to pursue charges against celebrities, and the fact that many violations are only civil in nature, this has the practical effect of silencing all reporting). It is easy to imagine why a person who has been victimized would be willing to accept such an offer: they may desperately need money and understand that, even if they were to speak out, nothing would come of it, given the wealth and fame of their abuser. Thus, on an individual level, signing an NDA could very well be the most rational choice. But on a broader scale, when used in this manner, NDAs create a culture of silence and impunity, wherein serial predators such as Harvey Weinstein can abuse victim after victim and use the combination of their wealth and their connections to evade any consequences. [2]
  In the years since the Harvey Weinstein scandal broke in 2017, the state and federal governments have taken steps to weaken the chokehold of NDAs on the disclosure of sexual and other misconduct. At the federal level, the Speak Out Act, passed in 2022, renders NDAs unenforceable in federal court insofar as they relate to allegations of sexual assault or harassment. [3] As a result, a person who breaches an NDA by telling their story of being sexually mistreated, whether in the entertainment industry or in another context, cannot be sued for that speech, taking away a major tool by which abusers can re-victimize their targets and throw sand in the wheels of accountability. In turn, knowing that NDAs are no longer the ironclad weapon they once were may deter abusers from relying on them as a cover for their misconduct. (It is heartening to note that the Speak Out Act passed the Senate by a unanimous vote, and was overwhelmingly supported in the House). California, the home jurisdiction for many Hollywood cases, enacted a similar law in 2019, rendering unenforceable any clause in a settlement agreement which required confidentiality relating to sexual misconduct or illegal discrimination.
  A related form of legal coercion, similarly relying on power imbalances, is the use of forced arbitration clauses to adjudicate disputes, rather than courts. It is well documented that arbitrators tend to favor corporations and moneyed interests more than courts do, something that has led to an unfortunate reality for workers and consumers, as the Supreme Court has steadily increased the effect of forced arbitration clauses. [4] Even so, Congress, also in 2022, passed a law removing sexual assault and harassment claims from the scope of forced arbitration agreements, thus allowing them to be heard in court. [5] Aside from the practical effect of leveling the playing field between accuser and accused, this move has a symbolic significance, in that it affirms that these kinds of misconduct are not some private dispute to be worked out between those involved, but rather a violation of values worthy of the public’s attention and resources.
  In and out of Hollywood specifically, the worlds of entertainment and sports, both of which rely on performance and have well-known and adored players, rely on NDAs to prevent victims of misconduct from coming forward and rocking the metaphorical boat. For example, Hockey Canada has paid over $7.6 million dollars in settlements for sexual assault-related claims between 1989 and 2022, and many of these agreements had clauses restricting the claimant’s public speech. [6]  And many more cases in which NDAs have been used to muzzle important speech will likely remain hidden, given the very purpose of those agreements is to keep something private out of the public eye. In those cases, it takes someone like Zelda Perkins, Weinstein’s former PA, who knowingly breached an NDA to speak out about how he attempted to rape a colleague. [7] The fact that the disclosure took place only in 2017 and related to an incident from 1998, alone, is enough to show the human costs of NDAs in this context. But even more startling is the fact that this agreement legally inverted the perpetrator and offender, in that Perkins was the one who could be held legally responsible (at least prior to the Speak Out Act), not for doing anything, but for speaking out about what she saw done to someone else. [8]
  Ironically, the very fact that the misuse of NDAs to conceal sexual assault and other forms of wrongdoing is becoming a matter of public knowledge is what motivates legislatures to weaken or even prohibit them in those cases. This is a welcome development, as it takes away a major form of leverage wielded by perpetrators against less-resourced victims and places the shame where it belongs, on the person who chooses to offend the dignity of another.
  What makes NDAs effective in terms of coercion compliance is their status as interlinked with physical and other types of force that the perpetrator can bring to bear. (Notably, Harvey Weinstein himself was convicted of numerous forcible sex offenses). In that sense, the threat of a lawsuit is just one arrow in a quiver, along with violence, damage to reputation, and loss of employment prospects. That is why so many stories of sexual abuse in Hollywood remained a secret, even from people who had every reason to know. For example, in 1935, Clark Gable was accused of raping his co-star, Loretta Young, leading to the birth of a daughter, Judy Lewis. That fact only became public eighty years later, once Gable and Young had both died, even though the fact that Gable was the father of Young’s child was an open secret on set. The reason was that, had Young gone public, she would have faced both the loss of reputation that accompanied women who had extramarital sex at the time, not to mention the possibility of further violence at the hands of a man who had already committed rape and who had every reason to not want that fact to get out. There, even without a formal NDA, the combination of superior force and unbalanced societal attitudes about sexuality kept Gable’s secret and allowed him to potentially get away with rape. NDAs therefore supplemented, rather than replaced, the traditional and foundational power disparities that enable and conceal misconduct in Hollywood. And weakening the legal effect of NDAs would do little to address these disparities.
  However, other contractual provisions, which govern how a performer interacts with the public, can be seen as even more restrictive than NDAs. Specifically, during the Golden Age of Hollywood, actresses were frequently bound by clauses aimed at keeping them away from other men in public, with the idea being that a married woman would be seen as having less sex appeal, and a mother would be unable to give her whole attention to her work. Thus, Judy Garland and Ava Gardner were both required to have abortions after becoming pregnant, and even if the sexual activity itself was entirely consensual, the insertion of an employer into a deeply personal decision for the purpose of commercial success represents a particularly acute form of misconduct. The fact that it was enabled by a contractual clause, one predicated on the removal of human agency for the studio’s profit, indicates that not only can agreements having force of law conceal abuse that has already been committed and shield future abuse, they can also represent a distinct form of abuse in their own right.
  The stories of NDAs, confidentiality clauses, and forced arbitration in Hollywood are three with a common theme. What began as a legal tool to protect strictly commercial interests was turned into a cudgel to threaten and coerce victims of and witnesses to sexual misconduct into keeping silent. None of these clauses created the culture of silence that was already pervasive, but they do make it worse by giving more and more leverage to the powerful, those who are most likely to make use of it to further their abuse. The law should limit their scope and enforceability, in the knowledge that, while it will not be enough to make Hollywood and the entire world of the arts and sports safe, it will be an important first step.

[1] “Confidentiality and Nondisclosure Agreements Explained,” Bloomberg Law (October 30, 2024), https://pro.bloomberglaw.com/insights/contracts/confidentiality-and-non-disclosure-agreements-explained. 
[2] Jennifer Khor, “Who Are We Really Protecting? The Use of Non-Disclosure Agreements (NDA) in Sexual Harassment and Sexual Misconduct Cases,” Community Legal Assistance Society (September 26, 2022), https://clasbc.net/who-are-we-really-protecting-the-use-of-non-disclosure-agreements-nda-in-sexual-harassment-and-sexual-misconduct-cases/. 
[3] 42 U.S.C. §§ 19401–19404.
[4] See AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013), Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018), and Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022). But see New Prime, Inc. v. Oliveira, 586 U.S. 105 (2019), Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022), and Bissonnette v. LePage Bakeries Park St. LLC, 601 U.S. 246 (2024) (narrowing the categories of employees who may be subject to forced arbitration under federal law).
[5] 9 U.S.C. §§ 401–402.
[6] Tom Yun, “Advocates say use of NDAs should be banned in sexual misconduct settlements,” CTV News (August 18, 2022), https://www.ctvnews.ca/canada/article/advocates-say-use-of-ndas-should-be-banned-in-sexual-misconduct-settlements/. 
[7] “Former Weinstein assistant Zelda Perkins broke a NDA to speak out. Now, she wants to stop their misuse,” CBC Radio (January 10, 2020), https://www.cbc.ca/radio/day6/mourning-iran-crash-victims-former-weinstein-aide-zelda-perkins-watching-cats-while-high-design-20-more-1.5421075/former-weinstein-assistant-zelda-perkins-broke-a-nda-to-speak-out-now-she-wants-to-stop-their-misuse-1.5421083. 
[8] 42 U.S.C. § 19403(a).