QotD: “If power and money put you above the law, then the law is worth nothing”

It was when I left Miramax in 1998 and tried to pursue justice that the scales really fell from my eyes; in some ways, the real abuse started then. I began working for Harvey when I was only 22 and didn’t really know who he was; partly through my naivety, partly through my upbringing, I happened to have the right set of tools in my personality to deal with him. I simply saw him as an unpleasant, lascivious boss and so treated him as such. I didn’t initially understand his power, or see him as the key to my future, which were the things that made so many others vulnerable to him.

But the challenge turned into a nightmare when a new colleague alleged Harvey had tried to rape her while we were at the Venice film festival. I had employed her to assist me, so she was my responsibility; once she told me, there was no possibility of us continuing to work for him.

On going to lawyers we were told, to our horror, that our only realistic option was to make a damages claim and enter into an agreement. They told me it wasn’t worth considering going to court. It became increasingly apparent that this had little to do with justice and everything to do with money and power. I had presumed the law was above all men, but the disparity of my position and Harvey’s trumped whatever he had done; the ensuing legal process ultimately broke my belief in the core values of our culture. That is more seismic than having your belief broken in one individual.

Miramax was represented by one of the most powerful “magic circle” law firms on the globe, Allen & Overy. Even though the allegations were of a serious criminal nature, a non-disclosure agreement (NDA) was negotiated that, as far as I can see, was wholly unethical. The agreement includes things that were legally extraordinary. Under its terms, my colleague and I would not be able to speak to a doctor, counsellor or accountant about what had happened, without them also signing an NDA, which we would be held accountable to if they broke it. The most sinister of these clauses stipulated that I was to use my “best endeavours” not to disclose anything in a civil or criminal case brought against Weinstein. In other words, I was to keep quiet, whatever the circumstances, for ever.

The NDA took hours of complex and stressful negotiations in Allen & Overy’s offices. The experience was one of complete siege mentality, with sessions lasting up to 12 hours. On one day, after a full morning’s negotiations, we resumed at 5pm and finished at 5am the next day. You lost track of time and space. We were two young women shut in a room full of lawyers talking in legal riddles, and we were not able to tell anyone what we were doing.

From the beginning, it was imperative to me that money never changed hands. But it was made very clear that a financial demand was the standard and only formula. At this point, our entire motivation became focused on the fact that, if we could not prosecute Harvey, then we had to stop his behaviour and protect people in the future, in exchange for our silence. Other obligations that were agreed were that Harvey would have to attend therapy for three years, and that Miramax would be forced to inform Disney (its parent company) or fire him if any further settlements were attempted. I don’t believe anyone had tried to do this before; it seems clear from the horrifying list of further allegations that have since emerged that his side of the agreement was not upheld.

I always felt we were being made to do something we didn’t want to do. However, it wasn’t a simple situation and it was not just about me. My colleague was in a very psychologically vulnerable position, having experienced extreme trauma in the first few weeks of her job, and we were being given frightening advice with few options. I had no choice but to do what our lawyers were telling us, even if it wasn’t what I wanted to hear.

Harvey insisted on being present on the day we signed the agreement. He apologised for his behaviour and offered us anything we wanted to return to the company. This was the first time my colleague had seen him since the attempted rape and it was obviously very distressing and intimidating. There seemed to be no protection within the system to stop this. His words that day were essentially an admission, all of which was noted down by our lawyer. But when we got up to leave, Harvey’s team insisted the notes be destroyed.

My film career came to a halt after that. It’s a small industry, and there were whispers and rumours. No one knew what had happened, of course, but after several uncomfortable interviews, it became clear people didn’t want to risk upsetting Harvey, and I couldn’t defend my reputation.

My goal now is to ensure that NDAs cannot be weaponised and used to hide criminal behaviour. Law firms have been enabling questionable behaviour and making money out of these agreements. And this is not just limited to sexual harassment; it is far more insidious within our work culture. My NDA would have been unenforceable, but this was never made clear to me and I lived in fear of it for 20 years – until last year. I felt I had been criminalised and that, if I spoke, I would be the one going to jail.

There will always be characters like Weinstein; we can’t deny the existence of charismatic, sociopathic and dangerous characters, and they seem to people the top echelons of most businesses. But as a society, we have a responsibility to make sure that employees are protected – and that if they are abused, they have true recourse.

There is a place for NDAs, but they have become an immoral tool, legally used to silence victims. The circumstances in which they are created need to be carefully examined, and regulated.

Earlier this year, I gave evidence to MPs at a select committee inquiry to examine sexual harassment in the workplace, and the improper use of NDAs. The lawyer who negotiated my NDA from Allen & Overy gave evidence immediately after me. I was sitting right behind him, watching his neck getting redder and redder as he was asked whether he had produced an agreement that could pervert the course of justice. I got terrible nervous giggles, because I hadn’t expected the MPs to be so aggressive. Unfortunately, the representative sent to the inquiry from Simons Muirhead & Burton (my solicitors 20 years earlier) had not been involved with my case.

My argument was not with the individual lawyers, nor even with the firms. My argument is with the fact that they were doing something apparently legal. A positive thing to have emerged from the inquiry is that the Solicitors Regulation Authority is now investigating; this, and the recommendations made by the select committee, mean there is a real chance that significant change will come. If power and money put you above the law, then the law is worth nothing. And that, fundamentally, is more frightening and dangerous than an ego out of control.

Zelda Perkins

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