Personal Injury

The Use of Non-Disclosure Agreements in Sexual Abuse Cases Silences Survivors and Shields Institutions

The use of non-disclosure agreements in civil litigation has recently attracted fervent debate. In the context of historical abuse, their use is conspicuous and widespread, with many settlements beleaguered by complex confidentiality clauses. Despite being mainstreamed into standard practice, at a structural level, they are corrosive and regressive – antithetical to survivor interests and designed to preserve the sanitised aesthetics of broken institutions.

Now, as public consensus shifts, particularly within the global context, it seems a prescient time for the law to move in the same direction. In the US, the model for change has already been set. For example, in Texas, victims of child sexual abuse can no longer be silenced thanks to Trey’s law – a law legislated earlier in the year that prohibits the use of nondisclosure agreements (NDA) in legal settlements involving claims of childhood sexual abuse.

While Australia consistently lags its peers internationally, it is neither fanciful nor speculative to imagine analogous developments here. In Victoria, a long-awaited bill to curb the use of non-disclosure agreements in sexual harassment cases was introduced to parliament in October – an unprecedented move the government claims will prevent victim-survivors from being silenced. Though the bill has yet to be passed and is not directly applicable to institutional abuse, it is indicative of what the future may hold.

To effectively elucidate why this reform is needed, it is pertinent to consider what an NDA is, how they are used in abuse cases, their legal effect under Australian law and beyond, and their implications for institutions and survivors alike.

What Is an NDA, and How Are They Used in Abuse Cases?

An NDA, or non-disclosure agreement, is an agreement between parties to protect sensitive information from disclosure to third parties or use for unauthorised purposes. In Australia, NDAs are legally enforceable contracts. If a party breaches the agreement, the other party may seek legal remedies for losses incurred.

In the context of historical abuse, the standard NDA prevents survivors from speaking publicly, sharing documents, identifying the institution or individuals, and disclosing settlement amounts. For institutions, on the other hand, NDAs are weaponised to protect their reputation, insulate them from accountability, prevent additional claims, control narratives, and reduce litigation costs. Consequently, NDAs have a proclivity to perpetuate the inherent power imbalance between institutions and survivors, especially when they are signed by survivors during moments of acute distress, with limited bargaining power.

While there are lacunas in data around the use of NDAs in child abuse cases specifically, broad research exists around their use in sexual abuse and harassment cases more generally. Research by lawyers from the Human Rights Law Centre and the Redfern Legal Centre, published in 2024 by the University of Sydney, found NDAs were considered “standard practice” in sexual harassment cases. It found 75% of legal practitioners had never resolved a sexual harassment settlement without including one..

The Legal Grey Zone in Australia

Under Australian law, NDAs exist in a legal grey zone. While there is no explicit ban on NDAs relating to sexual abuse or misconduct, they may be invalidated in court if they conceal criminal conduct, undermine reporting obligations, or offend public interest. But this rarely comes to fruition, and institutions know survivors are unlikely to litigate a breach. As a result, they are routinely misused to silence survivors and shield abusers, limiting survivors’ ability to speak publicly, join class actions or warn others.

International Reforms

Outside of Australia, analogous jurisdictions are taking more direct strides towards justice. A significant focal point for reform and policy change has been the United States, especially with the outpour of stories and experience surrounding the #MeToo Movement and Harvey Weinstein in 2017. Following the #MeToo Movement and the absence of a federal problem, states began enacting legislation to limit the usage of NDAs. Perhaps the best example of this is Washington’s “Silenced No More” law. As one of the most restrictive laws, it “voids all blanket NDAs and non-disparagement clauses entered into as a condition of employment, preventing NDAs from being enforced in any case involving illegal actions such as discrimination, harassment, retaliation, sexual assault, or conduct against a clear public policy mandate.

For NDAs pertaining specifically to historical child abuse, Texas has taken the most concrete action. The aforementioned Trey’s law was legislated earlier this year. It forbids the use of nondisclosure agreements in legal settlements involving claims of childhood sexual abuse – an implicit recognition that, for too long, schools, churches, religious institutions and other organisations have weaponised nondisclosure agreements to belittle survivors and avoid accountability for negligence. In doing so, it joins multiple other states in the US, including Missouri, New Jersey, Washington and California.

Looking Ahead

The continued use of NDAs in the context of institutional abuse contradicts the fundamental values Australia’s legal system is predicated on – transparency, accountability and survivor-centred justice. Without the necessary correction, institutions will continue to weaponise a loophole that perpetuates a power imbalance built on silence and shame.