O’Reilly paid $32 million to settle a harassment claim? That’s an astounding amount of money. The New York Times based its assertion on sources, because sources are the best sources.
Details of the settlement and how the company handled the O’Reilly situation emerged from interviews with two people briefed on the agreement and several others familiar with the dispute; all of them spoke on the condition of anonymity to discuss sensitive private negotiations.
O’Reilly’s spokesman, Mark Fabiani, “denounced” the Times’ article.
“Once again, The New York Times has maliciously smeared Bill O’Reilly, this time even failing to print a sworn affidavit from his former lawyer, Lis Wiehl, repudiating all allegations against Bill O’Reilly,” wrote Fabiani. “The Times ignored that evidence, sworn under oath, and chose to rely on unsubstantiated allegations, anonymous sources and incomplete leaked or stolen documents.”
This doesn’t actually deny the amount, but then, it’s confidential. And Bennett Gershman says that’s got to stop.
Interestingly, while much of the public outcry has focused, correctly, on the people who knew about the predatory sexual behavior but didn’t speak out, there is another enabler of the sexual harassment that hasn’t been mentioned, but should be: the legal system. Indeed, one of the most disturbing features of our legal system is the way it has been used by sexual predators to shield themselves from legal liability. They pay off their accusers and then make them sign confidentiality agreements to keep the accusations secret.
Calling the legal system an “enabler” is curious, as if the system did something on its own. Gershman’s beef is that the law allows private parties to enter into an agreement that requires them to keep the terms of a settlement confidential. If such a provision was prohibited, void as against public policy, then it would be off the table and parties could speak freely about both the underlying claim and its settlement.
Why does the legal system tolerate secrecy to protect powerful and wealthy people from legal liability? Why does the legal system allow powerful and wealthy people to buy off accusers, including with accusations of rape, with huge monetary payments and then insulate themselves from legal accountability by forcing the accuser as a condition of the settlement to keep the accusation secret?
Good questions, although Gershman’s use of the word “forcing” is disingenuous. No one is forced to do anything. No one forces a victim to go the civil route, go for the money, rather than go to the police, or go to the media. They had a choice of which path to take, and they chose the one lined with dollar signs.
Using hush money to buy silence and then keep the agreement secret is legal in most jurisdictions. But it’s a corrupt arrangement nonetheless. It resembles bribery and blackmail. It obstructs the ability of the justice system to root out dangerous offenders, allows the offender to continue to prey on victims, and corrodes the public’s perception that the justice system is fair and impartial. This is why hush money and secret settlements should be outlawed.
Notably, Gershman doesn’t answer his own questions, instead leaping to the other side of the argument to characterize civil settlements as resembling “bribery and blackmail.” Bribery, yes. Blackmail too. And bribery is exactly what civil settlements with confidentiality are all about. Perfectly legal bribery, of course, but bribery. Same with blackmail. And that’s what both sides are doing in this negotiation.
The part left out by Gershman is that the person making the claim is the one blackmailing the person who did the dirty. Pay up, O’Reilly, or I spill the beans on you. Here’s your loot, but keep yer yap shut and never mention this again. This, in legal terms, is a contract between two willing parties. There is an offer and acceptance. There is consideration. The deal is done.
Gershman’s problem is understandable, even if he couches it in derogatory characterizations rather than the benign language of the law. When the underlying claim is based on conduct that might otherwise be criminal, that ends up concealing the fact that a party to a settlement could go on to harm other people, paying hush money to conceal it means the criminal remains at large and other victims remain unaware of the threat.
What if confidentiality agreements were prohibited with regard to certain types of claims, such as rape or sexual assault?
Secrecy clauses that cover sexual assault and child sexual abuse would seem to be just the type of agreement that laws should explicitly make invalid as contrary to the public interest. Indeed, California last year enacted just such a statute that prohibits confidentiality clauses in civil lawsuits involving felony sexual assaults and child sexual abuse, and which subjects an attorney who violates the statute to professional discipline. Buying silence is akin to witness tampering, which is unlawful in virtually every jurisdiction.
The fact of a claim doesn’t necessarily prove that the offense occurred. For people whose popularity relies on public perception, a half-credible claim could be enough to destroy a career, especially if they’re controversial. Bear in mind that no one forced the claimant to retain a lawyer to negotiate a settlement rather than head down to the district attorney’s office. A choice was made, and it was made by the person who prefers money to “justice.” Or more accurately, for whom money is justice.
If the avenue of a private, fully-negotiated settlement of a claim, including one for sexual assault, was precluded by law from including confidentiality, there would be substantially less reason to reach a resolution. If the briber wouldn’t get silence, and would be subject to prosecution after paying off his victim, then why pay at all? And if the blackmailer promises to be silent for payment, and could still blab after payment, then they’ve got little to sell.
And if we view this through less hyperbolic characterizations than Gershman uses to inflame our outrage at what happened with O’Reilly, then we’ve chosen to impair the ability of private parties to resolve a dispute in favor of the public interest. If you’re the victim who got $32 million out of the deal, this would cost you bigly.
There is some basis for the claim that confidentiality agreements may sometimes benefit victims of sexual abuse. This may be their only means to obtain some redress for the harm the abuser caused them. That’s certainly not an insignificant consideration, especially given the uncertainties of civil litigation generally and the reluctance of some prosecutors to bring criminal charges, as seen in the failure of Manhattan District Attorney Cy Vance to bring charges against Weinstein. But the benefit to the victim has to be balanced against the danger to the public, and the compelling public interest in exposing sexual predators.
Does the “benefit to the victim” have to be balanced against anything? While Gershman’s arguments, despite the rather flagrant hyperbole, may well apply in some cases, he’s a little too willing to take a huge risk with the victim’s interest for some potential societal benefit. Nobody forced the victim to go for a settlement rather than prosecution. Should they be denied the choice because of some vague public interest? That’s what prohibiting confidentiality would mean. And if the victim ends up being the blackmailed rather than the bribee, everybody loses.
The idea that a crime has been committed, and the public is at risk, concealed behind a confidentiality clause that protects the wealthy is unseemly. But without it, Gershman demands that the victim take a hit for the benefit of society, and that private settlements be rendered untenable. If the claim about O’Reilly’s settlement is true, there are 32 million reasons why a victim wouldn’t go for such an outcome, just as she didn’t go to the DA in the first place.