The House and Senate will charge into the new session with two different policies covering the use of non-disclosure agreements in cases of sexual harassment, with the Senate voting unanimously Thursday to ban their use altogether.
The vote in the Senate took place a day after the House engaged in a spirited debate on the merits of a similar policy for that chamber and voted overwhelmingly to keep its current policy and reject a blanket ban on non-disclosure agreements.
"We are not, nor will we be in the future, in the business of silencing victims or covering up misdeeds under any circumstances using public funds," newly-elected Sen. Diana DiZoglio, of Methuen, said in a speech on the Senate floor.
DiZoglio offered the amendment to the Senate rules, arguing the agreements are a tool used by the powerful to keep victims of harassment and sexual assault quiet.
The rule change would prevent the use of such agreements in all circumstances between the Senate and a member, officer or employee. It was adopted without debate, though Senate President Karen Spilka has said in the past that it has not been the practice of the Senate to use NDAs, and she did not intend to change that policy.
DiZoglio, who signed a non-disclosure agreement as a House aide over what turned out to be discredited rumors, tried to implement a similar policy in the House last year when she was a member of that branch. The House, instead, voted to limit their use to cases when the NDA is requested by the victim of sexual harassment.
Freshman Rep. Patrick Kearney of Scituate tried Wednesday night to rekindle the debate in the House, but was shut down overwhelmingly, earning the votes of just four other members to ban the use of NDAs altogether in the House.
Kearney, like DiZoglio, said that non-disclosure agreements have been used by men like movie studio mogul Harvey Weinstein to silence his assault victims.
"I have spoken with dozens of victims about this policy and they repeatedly expressed concerns that this ineffective policy protects perpetrators instead of victims, people in positions of power instead of the powerless," Kearney said.
A handful of House Democrats and Republicans made a successful case to reject the ban, contending that it would actually take power away from victims.
Rep. Natalie Higgins, a sexual assault survivor who worked as a rape crisis counselor for a decade, said NDAs must be a tool kept available to victims. "I believe it will allow more survivors to feel comfortable coming forward and disclosing the violence perpetrated upon them," Higgins said.
Rep. Majorie Decker, a Cambridge Democrat, recalled the debate in the House last year when legislators voted to change their rules to only allow NDAs in cases when such an agreement is requested by the victims.
"To suggest this rule silences anyone or hangs over their head in exchange for a severance package just isn't true," Decker said.
Rep. Michael Day, an attorney from Stoneham, said that in many cases NDAs have been "the most important tool for a survivor at my disposal," because they can be used to keep perpetrators from destroying the reputation of their victims after a settlement is reached.
Rep. Claire Cronin, an Easton Democrat, and Rep. Sheila Harrington, a Groton Republican, also spoke against the amendment.
Kearney's amendment was supported by Reps. Russell Holmes, Maria Robinson, Angelo Scaccia and John Rogers.
DiZoglio, who watched the House debate unfold Wednesday night from the gallery, said she thought the arguments against Kearney's amendment missed the point. She said the argument for "victim-driven" non-disclosure agreements is a "valid" one.
"I hear those arguments but that was not was on the table with the rules package in the House and it's not what was on the table with the rules package in the Senate today," DiZoglio said. "What we did was we said we are not going to be a party to covering up any of the misdeeds of perpetrators who are colleague or staff in this building."
Notwithstanding the potential for bad advice or pressure to be brought on victims to request an NDA, DiZoglio said that nothing under the new Senate rule would prohibit a victim of harassment from seeking such an agreement from their abuser privately, without the involvement of the Senate as an institution.
DiZoglio said she has filed separate legislation this session modeled, in part, on the law in California that she hopes will spark a broader debate about the use of non-disclosure agreements in both government and the private sectors, including victim-driven NDAs.