Texas legislators have proposed bills that would make certain nondisclosure agreements in child sexual abuse cases void and unenforceable.
Photo by Savannah B. / Unsplash / Creative Commons
State Rep. Jeff Leach, a Republican from Plano, authored House Bill (HB) 748, and Republican Sen. Kelly Hancock filed a companion in the Senate, Senate Bill (SB) 1587. Senator Angela Paxton has filed a similar bill (SB 835), which has been referred to the State Affairs committee.
The bills would apply to nondisclosure agreements related to certain “acts of sexual abuse,” including indecency with a child, sexual assault, trafficking of persons, and compelled prostitution.
An NDA would be “void and unenforceable as against the public policy of [the] state,” if, as part of an employment, confidentiality, or settlement agreement, the NDA prohibits a party from notifying law enforcement or a regulatory agency about child sexual abuse or prohibits a party from disclosing facts about child sexual abuse during an investigation or prosecution.
NDAs can often arise as part of an agreement to settle a civil lawsuit about sexual misconduct.
Chi Alpha (XA) and the Lions Den, a group dedicated to exposing spiritual and sexual abuse in the Chi Alpha college ministry of the Assemblies of God, says it has seen NDAs “weaponized to silence survivors in the Chi Alpha abuse scandal.”
In late February, a group of XA and the Lions Den supporters visited the Texas legislature to encourage lawmakers to support these bills.
“These bills send a clear message: no institution—religious or otherwise—should be able to buy silence when abuse is involved. NDAs have been used as a shield to protect abusers and enablers, and that ends here. Survivors deserve justice, not legal muzzles,” XA and the Lions Den leader Ronald Bloomingkemper told MinistryWatch.
He is optimistic about the possibility of these bills passing.
“Momentum is building, and survivors, advocates, and lawmakers are rallying behind these bills. The fact that multiple legislators introduced similar bills shows strong support that should be bipartisan. You have to be some kind of evil … to say, ‘No, we like bills that cover up sexual abuse of minors to protect our brand,’” Bloomingkemper said.
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The SAFE Alliance, a nonprofit in Texas focused on ending sexual exploitation and child abuse, hasn’t worked on these bills specifically, but President Lesley Varghese said they generally favor them and hopes they “don’t get lost in the shuffle” of other legislative priorities.
Varghese said the group supports bills that help take the burden off someone who has endured trauma and remove impediments, like NDAs, that keep victims from getting help and holding their perpetrators accountable.
Before Leach’s bill was filed in November, he chaired a hearing of the Texas House Committee on Judiciary and Civil Jurisprudence about the use of NDAs in child sexual abuse settlements.
Cindy Clemishire, who last year revealed allegations of sexual abuse by founding Gateway Church Pastor Robert Morris beginning when Clemishire was just 12 years old, testified about being offered an NDA.
“I’m sitting here today because I did not accept that offer and refused to sign an NDA saying I couldn’t speak about my life,” Clemishire told the committee.
Clemishire said it took 20 years for her to fully understand that what she experienced was abuse because it wasn’t aggressive and came from a family friend. At that time, her attorney reached out and asked for $50,000 for counseling from Morris.
“At that time, I was revictimized by being told I was the one to blame,” she said. Her testimony is that Morris’s attorneys offered her $25,000 if she would sign an NDA.
“People think it’s about what happened physically to us, but what actually carries on throughout our lives is the development we missed out on, physically, emotionally, mentally, and spiritually,” Clemishire said, adding that there is scientific evidence of trauma in the brains of child sexual abuse victims.
Trey Carlock, a victim of sexual abuse at Kanakuk Kamps, sadly is no longer alive to have his NDA overturned. He committed suicide in 2019 after enduring a decade of grooming and sexual abuse.
His sister, Elizabeth Phillips, believes Carlock might be alive if the NDA he signed hadn’t forced him to keep silent about the abuse he suffered.
“He said to someone a few days before he died that ‘they’ll always control me and I’ll never be free,’” Phillips said. “He was silenced to his grave after a decade of child sexual abuse.”
While Kanakuk is in Missouri, Phillips told the committee that Texas is its largest market.
HB 748 and SB 1587 apply to agreements entered into before, on, or after the effective date of the legislation, which seems to indicate that the law would retroactively void certain provisions of NDAs.
When a law is applied retroactively, legal and constitutional questions can arise.
In 2022, President Joe Biden signed the Speak Out Act, which makes pre-dispute nondisclosure provisions unenforceable to the extent they prohibit discussion of sexual assault or sexual harassment allegations.
But it does not apply retroactively. It makes an NDA “agreed to before the dispute arises” unenforceable.
The federal Speak Out Act does not apply to NDAs that are part of settlement or severance agreements, according to an article by attorneys Gabrielle Levin and Kelley Pettus of Gibson Dunn.
In its primer about retroactive legislation, the Congressional Research Service (CRS) points out that most Constitutional questions arise when a law imposes a punishment retroactively. Then the ex post facto clause and prohibition against bills of attainder are often implicated.
However, in the civil context of settlement agreements, the CRS says there is “greater leeway” to enact retroactive legislation.
The State of Washington passed the “Silent No More” Act in 2022 that made NDAs about sexual harassment in the employment context unenforceable. It was more detailed in its explanation about the retroactivity of the law, only invalidating NDAs made at the outset or during the course of employment and not as part of a legal settlement agreement after misconduct occurred.
The Texas Constitution’s Bill of Rights prohibits ex post facto laws and bills of attainder, but goes farther, also prohibiting any “retroactive law, or any law impairing the obligation of contracts.”
MinistryWatch reached out multiple times to both Leach’s and Hancock’s offices for more information about the retroactive nature and application of the bills, but did not receive a reply before the time of publication.
Main photo: Photo by Savannah B. / Unsplash / Creative Commons
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