1-06 Confidentiality, Disclosure, Nondisclosure/NDAs, and Mandatory Arbitration Clauses

SECTIONS ON THIS PAGE

  • Confidentiality in Communications
  • Disclosure of Confidential Information
  • Nondisclosure Agreements/NDAs and Mandatory Arbitration Clauses

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There are many questions in the topic area of confidentiality and disclosure. Some are already settled law, others are emerging and under discussion. At this time, it seemed like the best way to address these interrelated issues was to have a section on each general area rather than sections based on resource sites as in most other pages.

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Confidentiality in Communications

Abuse/Violence Victims and Service Providers

RAINN is the acronym for Rape, Abuse & Incest National Network. Their State Law Database contains an entire section on confidentiality laws: Laws about Private Communications – “Are conversations between victims and sexual assault service providers kept confidential?” The comparison chart has one expandable box for each state, territory, and the District of Columbia. The data box answers the following questions:

  • What relationships qualify for privileged communications?
  • Who holds the privilege and has the right to waive it?
  • Are there any exceptions to the privilege?
  • Statutory citation(s).

Click on the “+” sign to expand the entry to see detailed information on these questions. Click on the “-” minus sign to collapse a state’s data. (You can leave multiple boxes open simultaneously, if desired.)

Clergy and “Privileged Communications”

The Child Welfare Information Gateway has a relevant document where a primary topic relates to “privileged communications” between clergy members and “penitents”/parishioners. It includes state laws on the subject and can also be accessed through the Child Welfare Information Gateway portal page, via the category of Child Abuse and Neglect.

Clergy as Mandatory Reporters of Child Abuse and Neglect – “This factsheet discusses laws that require members of the clergy to report cases of suspected child abuse and neglect. The issue of whether a member of the clergy can claim privileged communications as a reason for not reporting also is discussed. Full-text excerpts of laws for all States and U.S. territories are included.” [Emphasis added.]

Recording Phone Calls and Conversations

Research investigations and writing for news reports or blog posts can potentially involve recording phone calls or in-person conversations with abuse survivors, alleged perpetrators and enablers, and others interviewees. Questions arise as to whether a reporter or citizen journalist blogger can record these interactions at all, with their own “one-party consent,” or requiring “two-party consent” of both interviewer and interviewee(s).

For details, see 2-06 Recording Phone Calls and Conversations, in section 2-00 RESEARCHERS, INVESTIGATIONS, CERTIFICATIONS.

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Disclosure of Confidential Information

Rightful and Wrongful Disclosure of Confidential Information and Documents on Child Abuse

The Child Welfare Information Gateway has several relevant documents where a primary topic relates to disclosure of confidential information and records. These documents include state laws on the subject and can be accessed through the portal page, via the category of Child Abuse and Neglect. Those topics are:

Cross-Reporting Among Responders to Child Abuse and Neglect – “State laws that authorize cross-reporting and information sharing among the agencies that must respond to reports of suspected child abuse or neglect. Typically, reports are shared among social services agencies, law enforcement departments, and prosecutors’ offices.”

Disclosure of Confidential Child Abuse and Neglect Records – “[O]verview of state laws that designate the officials and entities that may have access to the confidential records of child abuse and neglect reports and investigations, the circumstances under which information may be disclosed, and the appropriate use of confidential information.”

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Nondisclosure Agreements/NDAs and Mandatory Arbitration Clauses

Nondisclosure agreements (NDAs) have emerged as an issue under contention because they are sometimes used as part of a confidential agreement between reported victim and perpetrator to “buy silence” from the survivor. Some argue this allows survivors to go on with their life in relative peace without having to go through the ordeal of reporting the abuse/violence, others argue it potentially allows those who have the power and financial means to negotiate NDAs with their victims to be serial perpetrators.

A closely related issue is the mandatory arbitration clause, which is a requirement that can show up in anything from business contracts to church membership “covenants” which function as legally binding contracts. Mandatory arbitration often includes NDAs, so if the issue at hand involves some form of harassment or abuse, the requirement to remain silent can contribute to systemic problems of serial perpetrators not being made public.

The #MeToo and #ChurchToo movements have brought NDAs and mandatory arbitration more into the spotlight, and we can expect to see an increasing number of actions taken to exposure the potential flaws in these legal elements.

Church Membership Covenants – Legal Contracts that are NOT Biblical! by The Wartburg Watch, permanent page posted in 2017. Although this page does not address mandatory arbitration or NDAs directly, they have come up in specific case studies of spiritual abuse in churches and ministries. So, this page is a starting place for research into these covenant/contract documents and situations of spiritual abuse.

Gretchen Carlson is on a mission to end secret pacts: Fox News whistleblower fights arbitration deals that stop women speaking on harassment, by Shannon Bond, Financial Times; March 7, 2018.

Washington [state] to end nondisclosure agreements in harassment cases, by Reid Wilson, The Hill; March 22, 2018.

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