October 27, 2022

Janelle O’Connor

In my civil sexual assault practice, some clients wish to remain anonymous, but most don’t. I have learnt that choosing to speak out about one’s own experience of sexual abuse can be an important and potentially therapeutic form of healing and recovery for survivors.

Speaking publicly is important to some survivors because it gives them a chance to reclaim ownership and control over their own narrative. Many survivors who chose to speak publicly about their experience also do so to serve the public interest. Their stories help play an important role in shaping societal understanding and attitudes around sexual assault. They also help break down the isolation experienced by other survivors.

Nonetheless, most civil lawsuits end up in a negotiated settlement before a survivor’s story has ever been shared publicly. Settlements eliminate the cost, risk, and time it takes to have a trial. Also, since money is rarely the only reason a survivor decides to take legal action, a settlement can provide for non-monetary remedies of importance to the survivor, such as an apology or formal changes to an institution’s policies and procedures.

In most cases, achieving a settlement is in the best interest of everyone involved; however, a settlement usually comes with a confidentiality agreement. In personal injury litigation, the standard settlement agreement includes a provision where the parties agree to keep the terms of the settlement confidential. In civil sexual assault cases, the proposed confidentiality agreements are often much broader. In some cases, the clauses try to prevent the sexual assault survivor from ever again discussing their experience of abuse. There are many problems with a confidentiality clause in this context. Notably, being forced to stay silent can have negative mental health impacts for survivors.

Recently, Prince Edward Island has introduced legislation that essentially restricts organizations from using non-disclosure agreements to prevent survivors of sexual assault from speaking out. The parties can only agree to a confidentiality clause if it is in accordance with the survivor’s wishes.

I have always found confidentiality agreements in the sexual assault context offensive, but they can provide leverage for a survivor wanting an early settlement. I am pleased that more institutional defendants have come to appreciate that requesting a gag order maintains the social stigma around sexual violence and is not in the best interest of our communities. Some institutions in British Columbia have even established a policy of not requiring confidentiality agreements in cases involving sexual assault.

It might only be a matter of time before other provinces adopt PEI’s legislation making gag orders in sexual assault cases moot. In the interim, survivors should review the clauses carefully and give some real thought to the impact of staying silent before deciding to sign on the dotted line.

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