Trey Carlock survived sexual abuse as a child at Kanakuk Kamps, but he didn’t make it to his 30th birthday. The University of Texas at Dallas graduate student died by suicide in 2019. His family decided to reveal the fact that he had been abused for the first time in his obituary.
His sister, Elizabeth Phillips, told Texas officials at a hearing last fall that she believes he might still be alive if a nondisclosure agreement (NDA) hadn’t condemned him to keep the horrible things that happened to him secret.
“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.”
At least one legislator has heard him now.
Jeff Leach, a Republican who represents part of the greater Dallas–Fort Worth area, has proposed a bill that would make nondisclosure agreements covering the sexual abuse of children “void and unenforceable.”
If the bill is enacted, businesses would still be allowed to use NDAs to protect trade secrets—the original purpose of the legal tool—but no one could use an NDA to cover up child sexual abuse. Leach, a Christian who attends a nondenominational church in Plano, Texas, thinks the state needs to better distinguish between the legitimate and illegitimate uses of the legal tool.
“The goal here is to empower victims—victors, as I like to say—to empower them and provide them the full support of the state when it comes to seeking justice and holding wrongdoers responsible,” he said in a judicial committee hearing.
No one knows how many NDAs are currently in force in Texas or across the country. Nor does anyone know how many have been used in abuse settlements.
Julie MacFarlane, a Canadian law professor, sexual abuse survivor, and cofounder of Can’t Buy My Silence, said a lot of the history about the use of the legal tool is opaque. Some NDAs include language prohibiting even the disclosure of the NDA. Few people challenge these agreements in court, so only the people who sign them know about them.
NDAs are commonly used by churches and Christian ministries today, both in standard employment contracts and in legal settlements. It’s unclear exactly when that started, though.
“Probably in the last 10 or 15 years?” MacFarlane told Christianity Today. “Somebody came up with the idea of using the same contract template for misconduct. So now, basically, every kind of misconduct or embarrassing thing that happens inside an organization is a trade secret.”
NDAs are not usually separate agreements, according to MacFarlane. They are usually clauses in legal agreements that require nondisclosure, nondisparagement, or confidentiality. They generally appear in four situations: NDAs might be included in the contracts employees sign before starting jobs, she said. They might be used during mediation or investigation—perhaps just temporarily, but increasingly lasting long past the completion of the process. They can appear in severance agreements that employees sign in exchange for financial packages.
And, as in the case of Trey Carlock and Kanakuk Kamps, NDAs can appear as stipulations in the settlement of lawsuits.
No one is forced to sign an agreement that requires silence in perpetuity, but people often don’t feel that they have a choice. Kathryn Robb, national director of the Children’s Justice Campaign for Enough Abuse, told Texas legislators that when survivors of child sexual abuse sign NDAs, there’s almost always an issue with an imbalance of power. And they are often unaware of the long-term consequences of not being able to share their stories and tell the truth about what happened to them.
“They’re desperate to get this behind them,” Robb said.“They’re desperate to find a new day.”
Phillips believes that was the situation for her brother.
“When you’ve been abused and gaslighted and retraumatized in a civil litigation process, you’re exhausted, just trying to function,” Phillips said. “And opposing counsel offers you seven figures if you just sign on the dotted line.”
For many survivors, it’s not much of a choice, Phillips told legislators.
“They need money for a lifetime of care because crimes perpetrated by a serial sex offender and institutional leadership that enabled the predation have changed their lives for the worse, and it’s a lifelong healing journey,” she said. “My brother referred to his settlement as ‘blood money,’ as if he had betrayed his own soul to keep Kanakuk secrets.”
The widespread use of NDAs makes it harder for victims to report sexual abuse that happened to them while they were children, too. And they already face a mountain of obstacles, according to MacFarlane. Many are too intimidated, ashamed, or traumatized to come forward. They worry about being sued for defamation. They wonder if they’ll be believed.
Cindy Clemishire, who accused former Dallas megachurch pastor Robert Morris of sexually abusing her as a child, told Texas legislators how hard it was to come forward.
Morris built his ministry, signed book deals, and grew more prominent while Clemishire struggled to even articulate what had happened to her. She didn’t accept the label “sexual abuse” until she was 35, after about 10 years of therapy.
“It is hard, because I’m still trained to think that if I tell the truth, it’s going to ruin everything,” she told The Dallas Morning News. “Being able to wrap my brain around it as a mom and as a woman and just a more mature adult, being able to accept it … all of that is very painful.”
Clemishire finally went public at 37, after the state’s statute of limitations had passed. She told legislators that Morris’s attorney had offered her $25,000—as long as she signed an NDA. She could really use that money but decided it taken her too long already to find her voice.
“I’m sitting here today because I did not accept that offer and refused to sign an NDA,” Clemishire said.
Many child victims do not speak about what happened to them for decades. More than half of the victims of abuse in the Boy Scouts waited until they were 50 to disclose, according to Child USA. A 2014 German study found the average age for child sexual abuse survivors to disclose what happened to them is 52.
Most states have no laws limiting the use of NDAs. Since 2017, when the #MeToo movement started to bring attention to the problem of sexual harassment, several states have passed laws restricting the use of NDAs in the workplace.
In Maine, for example, the law now says an NDA can prevent disclosure of factual information “only if the agreement expressly provides for separate monetary consideration.” In Illinois, an NDA has to be the “documented preference of the employee” and “cannot use language that would completely prohibit employees from making truthful statements.” In Oregon, the victim of sexual assault has to ask for an NDA, and employers cannot make the request for an NDA a condition of a settlement offer.
Two states—California and Washington—now completely prohibit NDAs from covering sexual harassment or abuse but only for conflicts between employers and employees. NDAs may still be used in other legal settlements. There are no legal restrictions on settlements involving children.
But just because no one has done it is not a reason for Texas to hold back, Leach told fellow legislators.
“I want our state to lead instead of following other states,” he said.
Last year, eight pastors left Dallas-area churches amid accusations of moral failings, mostly sexual. Three were arrested and charged. Others could have been charged if the crimes had been reported sooner. There are about 50,000 people in the area who attend these churches, and some of them are Leach’s constituents.
“We’re behind where we need to be and where we should be,” the state congressman said. “I fear that if we don’t act in a real, meaningful, and strong way, we’re going to almost become a sanctuary for these criminals who are preying on our children.”
So far, however, Leach has not gotten any other legislators to sign on to the bill, though three other similar bills have also been introduced in the legislature. No one has spoken against it publicly.
Phillips is holding out hope, though, that the story of her brother and concern for victims may win the bill a hearing. Lifting the heavy weight of secrecy imposed by the NDA could help so many who need to heal, she believes.
“When you take someone’s voice away, especially a child’s, you take away their most linear path to healing,” Phillips said. “NDAs are for trade secrets, not trauma secrets.”
Correction: This article has been updated to show that additional bills have been filed in the Texas legislature.
