In a hotel room in Queensland, a mother sits down to tell a story that has been weighing on her for more than a decade.
- A woman who says she was gang raped by her boss and his friend has broken her silence in breach of her non-disclosure agreement (NDA).
- She is doing so because she fears confidentiality clauses protect perpetrators, and should be banned
- The Australian Human Rights Commission has been looking at NDAs during its inquiry into workplace harassment
The woman wears a long skirt and a collared shirt buttoned to the top, and shuffles through the paperwork she has brought to help verify her story.
Rather than being nervous, she is calm and at the ready.
“I’m sick of being silent,” she says.
Her story begins when she was newly married and starting one of her first jobs.
Her boss was a man who was “overt”, she says.
The woman, who we’ll call Bianca, alleges her boss was a man who deliberately fostered a workplace where it was normal to have sexually explicit discussions or make crude jokes.
“He seemed to deliberately employ young women,” she says. “He would ring me at all hours of the evening and say sexually explicit things.”
Then there were the weekend retreats where select staff, often young women, would be invited away for planning meetings.
“My manager would buy drinks for most of us and insist that we drink them,” she says.
The one weekend Bianca was invited along, the drinking escalated.
When she refused, her manager bought her more to drink, she says. When she dropped her glass, he handed her a straw and told her to suck it up.
“After we’d finished drinking, this manager and one of the friends that he had employed, his own personal friend, carried me up to their room,” she says.
“I could barely walk. I was very, very drunk.
“He proceeded to take my clothes off and then sexually assaulted me with his friend that night.”
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‘Nobody is gonna believe you’
Bianca says she remembers only flashes of flailing about during the assault, unable to control her limbs but also making clear she didn’t want to be there.
“Once they had finished what they were doing, they essentially picked me up and shut me out of their room and said, ‘Go to bed’. And that was it.”
The next day, she didn’t want to go to the police.
“I wanted to forget,” she says.
“I really wanted to get out of there as quickly as possible and never speak of it, or think of it, again.”
But other former workmates, who the ABC has spoken to, say they witnessed her being carried up the stairs.
When Bianca confided in a senior colleague, the company’s human resources department got involved.
She was summoned to a meeting.
Beforehand, her boss confronted her, Bianca says.
“He said words to the effect of, ‘Nobody is gonna believe that you’re anything but a little slut based on how you behaved and how much you drank’.”
Once in the meeting, Bianca says, she was met by three senior staff across a meeting table.
“The questions they were asking were quite, sort of, personal and voyeuristic,” she says.
Under sustained questioning, and crying, she did something she still regrets to this day: she falsely recanted.
“I remember saying to them something like, ‘If I tell you that I made it all up, will you let me go?’ And they just replied, ‘Did you make it up?’ And I said, ‘Yes, I did’.”
Bianca, who can’t be further identified for legal reasons, was then given an official warning for lying.
The turning point that led to a fight for compensation
Being given an official warning was a turning point for Bianca.
It prompted her to get the help of a lawyer.
“That this organisation might think that I was a liar was quite offensive to me,” she says.
Her solicitor discovered there’d been similar complaints about the manager and he’d already been informally warned.
“They were quite prepared even at that time to disregard my story as a lie because that was convenient for them,” Bianca says.
She entered conciliation with her employer. After almost two years, she signed a settlement agreement.
By that stage she was pregnant.
“The doctor had told me that the stress that I was under was not good for my unborn child,” she says.
“It was either discontinue the matter for my sanity or take the money and run.”
So she signed a confidentiality clause, known as a non-disclosure agreement (NDA), which banned her from ever discussing the matter again.
But despite the personal risk involved, she’s decided to break it.
Bianca approached the ABC with her story, via a third party. What she wants to highlight is not the men who assaulted her, but rather the entity that protected them.
In this case, she believes it was her employer: the Catholic Church in Queensland.
“I hate that the fact that I signed a non-disclosure agreement means that this perpetrator was then able to go on and [potentially] perpetrate this kind of abuse,” she says.
The ABC approached the Catholic Church in Queensland about its use of NDAs but could not ask questions specific to Bianca’s case because of the legal agreement in place.
However, the church did say the archdiocese of Brisbane does not currently use confidentiality clauses in workplace sexual harassment settlement agreements.
Do confidentiality clauses protect victims or perpetrators?
That’s a question many have been asking in the US, where the Harvey Weinstein investigation has highlighted how NDAs can keep scandals quiet.
On the weekend, US presidential hopeful Michael Bloomberg agreed to release three women from NDAs relating to comments he’s accused of making, and said his media company would stop using them to resolve complaints.
Closer to home, the Australian Human Rights Commission has been looking at NDAs as part of an inquiry into workplace sexual harassment.
It had 38 companies provide waivers for NDAs to allow people to speak to the inquiry.
The findings are likely to be released this week.
Sex discrimination commissioner Kate Jenkins says some employers complained to the inquiry that NDAs have stopped them from giving honest references about perpetrators to prospective employers.
Some companies are also concerned the agreements prevent managers from communicating with staff about the action taken after a complaint, or discussing the systemic issues that might need to be dealt with in a workplace.
Maurice Blackburn lawyer John Bornstein says most sexual harassment clients sign NDAs — often under duress.
“There are situations where women are confronted with a very stark choice — their employer says you will not get a settlement unless you sign up to a confidentiality provision,” he says.
Family and domestic violence support services:
- 1800 Respect national helpline: 1800 737 732
- Women’s Crisis Line: 1800 811 811
- Men’s Referral Service: 1300 766 491
- Lifeline (24 hour crisis line): 131 114
- Relationships Australia: 1300 364 277
In the wake of the #MeToo movement, women have been contacting him asking to be released from the agreements.
But for other victims, he says, the agreements are a way to resolve matters privately and move on.
Ms Jenkins says NDAs still have a role.
“Non-disclosure agreements are a really important way to help people move on and to protect reputations of everyone involved, the victims included, so that their privacy is respected,” she says.
‘I hate feeling silenced’
This data shows the police response to 140,000 sexual assault reports
New figures reveal, for the first time, the investigation outcome of nearly every sexual assault reported to police over a 10-year period.
Bianca knows her former employer might ask for her payout back, but she’s not too concerned.
The amount she received for her ordeal was $5,000.
Mr Bornstein says such “appallingly low” payouts were common a decade ago, but are usually much higher now.
Bianca says being subject to an NDA over time has made her feel complicit in hiding something.
She wants them banned.
“I hate feeling silenced. If they choose to do so, they can take me to court,” she says.
“But at this point, what price a voice?”