By Rebecca Beitsch
WWR Article Summary (tl;dr) A Stateline review found at least 32 lawmakers who have left office in the face of sexual assault and or harassment accusations. But lawmakers have also pursued broader changes in response to the #metoo movement.
The #MeToo movement has touched almost every industry in the past year, and state legislatures have been under growing pressure to curb sexual assault and harassment in private workplaces and within their own chambers. But has the reckoning had an impact on the law?
Early signs point to yes.
Sure, the resignations have been plentiful as credible allegations of sexual harassment have toppled lawmakers.
A Stateline review found at least 32 lawmakers who left office in the face of such accusations. But lawmakers also have pursued broader changes in response to the movement.
Some states have placed limits on nondisclosure agreements (NDAs). Legislators also have cited the #MeToo movement in passing legislation to improve the testing of rape kits and to extend the statute of limitations for victims who want to file civil lawsuits against their abusers. And nearly every legislature in the county has reexamined its own policies for dealing with workplace harassment.
Legislators say serial sexual harassers have used nondisclosure agreements to continue to abuse victims, primarily women.
Movie producer Harvey Weinstein, whose downfall last fall largely prompted the #MeToo movement, and a number of politicians have used nondisclosure agreements to continue to harass multiple victims over long periods of time. In many cases, the agreements were folded into financial settlements designed to compensate former employees while barring them from speaking about the harassment and abuse they experienced.
Tweaking nondisclosure agreements to limit how they may be used for harassment claims is an area of law previously untouched by lawmakers, yet six states (Arizona, Maryland, New York, Tennessee, Vermont and Washington) now have something on the books.
“Obviously the #MeToo movement has had a huge impact on our conversations and that’s been terrific, but I’ve been concerned that many movements that are dialogues and open conversations don’t necessarily produce real change, so I wanted to make sure we were seizing the moment,” said Washington state Sen. Karen Keiser, a Democrat who sponsored NDA legislation enacted this year. “The only way I know how to do that in any substantive way is to pass a law.”
While nondisclosure agreements have been a new and popular target in state legislatures this year, approaches to curbing their use have varied widely.
None of the new laws ban the use of nondisclosure agreements for sexual abuse and harassment outright, proponents say some victims might want to protect their privacy after an incident. But some laws do bar using the agreements at hiring, and others ensure NDAs can’t stop victims from coming forward in criminal proceedings.
In Washington, state lawmakers approved a package of bills targeting NDAs that cover sexual abuse and harassment, and employers there will no longer be able to require people to sign them as a condition for employment. Existing contracts will be considered void.
“People were astounded they had waived their right when they signed all that paperwork for that job,” Keiser said. “Most people just skim things over, click the agree button, and go over to the next page. Secrecy is the big bugaboo of sexual harassment and allows it to continue.”
In Arizona, the law enacted this year says the agreements cannot stop victims from participating in criminal proceedings that relate to their abuse, but it doesn’t stop employers from using them at hiring.
State Rep. Maria Syms, a Republican who sponsored the bill, said the case against Olympic gymnastics doctor Larry Nassar showed how NDAs were being used to silence victims, with one gymnast facing a $100,000 fine for testifying against him in court.
“Obviously in the most egregious circumstances where you have sexual predators like Nassar and Weinstein, we need to consider a compelling public safety interest at stake here,” Syms said. “This is why the Arizona law is narrowly tailored to further those public safety interests without compromising the constitutionally protected right to enter into agreements.”
The law also bars sexual harassment agreements reached with public officials from including a nondisclosure agreement if victims are paid with tax dollars.
“If you use your own private dollars, that’s your prerogative,” Syms said, “but if you’re going to be using public tax dollars, the public has the right to know the details of any settlement where their money is being used.”
Syms’ law doesn’t bar public money from being used to settle sexual harassment claims, and employment lawyers have argued against doing so, saying that requiring lawmakers to pay out of their personal pockets could limit the chance of victims actually receiving payment.
This year also saw the passage of a number of bills dealing with rape kits, prompting states to either test their backlog of kits or set forth new procedures for making sure they are tested in a timely manner.
Pushed by survivors whose cases have languished, many state audits of evidence lockers have revealed a staggering backlog of untested rape kits. Research from the Joyful Heart Foundation, an advocacy organization that tracks state testing of the kits, found that state audits of inventory show there are at least 155,000 untested kits, though in a dozen states it is unknown how many kits sit untested.
Ilse Knecht, director of policy and advocacy for Joyful Heart, said victims have felt empowered to come forward in an environment that seemed more open to addressing sexual assault.
“It’s part of the same puzzle,” she said. “The rape kit backlog or a rape kit sitting on a shelf is a symbol of a survivor that’s been disregarded, so that certainly has to fit into this #MeToo moment, and it’s a very tangible problem.”
Alaska this year appropriated nearly $3 million to have its more than 3,400 backlogged rape kits tested by private labs, though no deadline has been set.
But not all states were willing to spend that kind of money, and in many cases they enacted changes to how police will handle rape kits in the future, rather than altering procedures for the mounds already sitting on shelves.
In North Carolina, Attorney General Josh Stein, a Democrat, asked for $10.6 million to test the state’s more than 15,000 untested kits while using existing funds to cover the cost of building a tracking system for rape kits. The Republican-controlled Legislature gave approval to start the tracking system but denied the funding.
Although the 15,160 figure is the result of a Legislature-required audit of North Carolina’s law enforcement agencies, state Rep. Ted Davis, the Republican who sponsored the narrow bill that eventually passed, said he opposed funding to test the kits without more solid numbers on how many untested kits existed. Ninety-two percent of state agencies responded to the audit.
Davis said in an interview that it was important to “get a grip on how many rape kits actually need to be tested because you will not have to test a kit where the defendant (pleaded) guilty, or where the prosecuting witness is refusing to testify, where defendants have died. … Let’s get the system in place to see what we have, and that argument about why we should and why we should not (test the kits) can be at a later date.”
Proponents for testing rape kits argue it’s important to test all kits, unless the victim is opposed, because even in cases where someone has pleaded guilty, the evidence could be used to solve other open cases where a rapist’s identity is unknown. DNA also can be used to exonerate those who are wrongly convicted.
“What this work is proving, and this is very startling but also a big opportunity, is that many of these people are actually serial sexual assaulters,” said Alaska state Rep. Geran Tarr, a Democrat who sponsored the rape kit legislation there.