Christianity Today [Carol Stream IL]
July 7, 2021
By Daniel Silliman
A wave of activists across countries and denominations is calling for the end to non-disclosure and confidentiality clauses.
A growing number of ministers, missionaries, Christian workers, abuse victims, and victims’ advocates are publicly objecting to the non-disclosure agreements and confidentiality clauses used by major religious organizations. They say the legal tools that were designed to protect tech industry “trade secrets” are widely misused to conceal abuse, preserve secrets, and protect powerful reputations without regard for the human cost.
“It’s time to set people free,” said Lee Furney, one of the organizers of #NDAfree and a British expat who lives in Malawi and works to support churches there. Furney played a key role in exposing the sexual abuse of evangelical Anglican leader Jonathan Fletcher, and has become an advocate for abuse survivors.
“In some ways, an NDA can look reasonable,” he told CT. “But find for me the perfect NDA, and it’s still not perfect. There’s no transparency. No accountability. You can’t track them or how they’re used. And they’re binding the conscience for the future, saying I can’t change my mind, regardless of the situation.”
Non-disclosure agreements and confidentiality clauses are often quite expansive, with broad and sometimes open-ended definition of confidential. One agreement reviewed by CT included the names of anyone the person had ever worked with in the parachurch organization, any information that could be deemed damaging or disparaging, and any “information regarding ministries.”
Most NDAs include prohibitions against disclosing the non-disclosure agreement, cloaking even the secrecy in secrecy.
“It’s suffocating,” said John Sather, who signed an NDA with Cru in 2019, when he left the ministry formerly known as Campus Crusade for Christ after 45 years on staff. Sather had a bitter dispute with leadership that left him in severe mental anguish, seeking therapy and any possible exit from the parachurch organization.
At the time he signed, Sather and his wife, Chris, saw the agreement as their only way out of Cru. They said they didn’t think too much about the consequences of a contract that committed them to silence in perpetuity.
“According to what we signed, If I say anything, that’s covered by the NDA,” Sather said. “I’ve learned in therapy how important it is to speak, but an NDA is this suffocating thing, when the very thing you so desperately want to do is tell your story.”
The Sathers, who both worked for Cru, have asked the ministry to release them from their agreements. The request has been rejected, so they have decided to speak out against NDAs.
They’re not alone. The #NDAfree website will attempt to raise awareness about the problems with confidentiality clauses, which are now frequently included in employment contracts, severance agreements, and legal settlements. The campaign will also seek to give people who have a signed NDAs a few tools to help them pressure Christian organizations to stop using NDAs. The website includes sample templates of letters asking for release, an #NDAfree pledge, and questions that organizations can ask as they evaluate the use of confidentiality clauses.
Brad Patterson, lead pastor of the First Baptist Church in Lavon, Texas, called for a study of Southern Baptist NDAs at the convention’s annual meeting in June. His motion asked that the Executive Committee, the six Southern Baptist seminaries, the International Missions Board, and the other convention entities give a report on confidentiality agreements next year, paying “particular attention to what is the biblical justification, how many have been signed or agreed to in the last five years, and utilized for what specific purpose.”
The resolution was referred to the Executive Committee for consideration. Patterson told CT he is “not accusing anybody of anything” but is concerned about the lack of trust in leadership and ongoing issues with transparency.
“We will not be able to know the things we need to fix if we’re not able to know about them,” he said. “There have been a lot of changes made in a lot of entities in the last five years, and transparency is important.”
The Christian organizations using NDAs agree there can be issues with transparency and abuse, but they argue that confidentiality is not always a sign of a cover-up.
Not intended to silence survivors
All Souls Langham Place, a conservative evangelical Anglican Church in central London, is named on the #NDAfree website as one church that has misused confidentiality agreements. A spokesman for the church said that’s not true.
“All Souls has on very rare occasions used confidentiality clauses in employment settlement agreements, and not to prevent the disclosure of abuse,” the church said in an official statement. “We condemn any action, including the use of Non Disclosure Agreements (NDAs), intended to silence survivors.”
NDAs make it possible to resolve disputes with settlements that allow both parties to move on. As a legal tool, they are now standard practice almost everywhere.
“There’s a general expectation of confidentiality that we ask staff to abide by, which is kind of normal for most organizations,” said Steve Sellers, president of Cru. “We’re not overrun by trade secrets or anything, but we want to protect the location of staff, especially in hostile countries, the privacy of donors, and the privacy of other employees. It’s not designed to silence anyone, but confidentiality is important.”
The use of NDAs and similar legal tools is not confined to major denominations and the largest parachurch organizations. Many ministries have NDAs in their employee handbook, to be signed along with the statement of faith. Some churches, large and small, even require volunteers to sign confidentiality agreements.
It is not clear when churches started using these legal tools. In the US, NDAs were developed by the tech industry when legislatures started cracking down on the abuse of non-compete clauses and courts began limiting the definition of trade secret.
In 1978, an Illinois company sued a computer programmer who quit and went to work for a competitor. The company claimed that the legal protection of trade secrets should include everything the programmer did at his job, including basic programing methodology. The court rejected that argument, and the tech industry started including broader and broader confidentiality clauses in contracts.
These were soon added to the contracts of top executives in the tech industry and beyond. Today, according to one study, nearly 90 percent of CEOs in the US have an NDA with their company. Most of these do not define what is confidential, and many last in perpetuity.
By the 1980s, “contracts of silence” also became a regular feature of legal settlements. Lawsuits were taken out of court “for an undisclosed sum of money,” and corporations could reassure their stakeholders that they weren’t admitting to any wrongdoing or accepting liability. Since the large payouts were secret, they also wouldn’t prompt more lawsuits.
The first public information about a Christian organization using an NDA is in the settlement of sexual abuse allegations. A Catholic family whose three sons had been abused by a priest in Louisiana accepted a settlement of several hundred thousand dollars and signed an agreement that included a confidentiality clause.
They regretted that, later, when they met other children victimized by the priest and learned their bishop had reassigned the serial predator to another congregation.
The bishop “used the excuse that he made a vow to protect the church,” the father of the family later told journalists. “He made it very plain that the church came first.”
Protecting reputations instead of people
Lucy Hefford, a graduate student and administrative assistant who says she was raped by a work supervisor at the Oxford Centre for Missions Studies (OCMS), had a very similar experience. When she signed an agreement with a non-disclosure clause, she thought the organization was acknowledging the truth of what happened to her and giving her a way to shut the door on an ugly and painful period in her life. She later learned her abuser was allowed to continue supervising graduate students, none of whom were told that the Christian leader they trusted to direct their academic studies had violently forced himself on a former supervisee.
Hefford said that when she protested, she was reminded of the confidentiality clause in her agreement.
“That’s when I went, ’Oh Lucy, you’ve been so stupid. You thought they believed you, but they just wanted you to go away,’” she told CT. “They were putting reputational damage over me as a person and that was excruciating.”
Hefford does not know what legal risks she’s running by speaking out about her abuse, but she has decided she cannot abide by the terms of the NDA.
“It’s evil,” she said. “I am at risk, huge financial risk, but I just have to trust God that if I’m walking in the truth—I don’t want to over-spiritualize, but whatever will be will be.”
David Cranston, chair of OCMS’s board of trustees, said he could not comment on individual matters, but the organization does use confidentiality agreements.
“OCMS considers that it is ethical and legitimate to use confidentiality clauses as part of a wider settlement agreement where the intention is to safeguard the interests of both the employee and employer and the wording does not preclude whistleblowing,” he said in an email to CT. “The wording of the clause would always be considered carefully to ensure it was appropriate and ethical for the particular situation.”
NDAs have been used by the organizations associated with many prominent evangelical leaders accused of spiritual, sexual, or other kinds of abuse, including Ravi Zacharias, Dave Ramsey, Steve Timmis, Bill Hybels, and Mark Driscoll.
But organizations that use NDAs say that getting rid of the legal tool that protects confidentiality is not the only way or even the best way to prevent abuse from happening.
Other ways to prevent abuse
At Cru, Sellers said that while the ministry places a high value on protecting privacy, it also has confidential phone lines that allow staff to report abuse or misconduct to human resources and a whistleblower policy that bypasses management, allowing people to make complaints to the board. He said every claim is investigated.
“I think you should tell the truth all the time, but that doesn’t mean you tell everything to everybody,” Sellers said. “In the worst forms of abuse, there’s a moral and legal responsibility to disclose things like that. But you also have to do it in a way that maintains the privacy of the person—there’s a victim involved, you don’t want to just broadcast their information to everyone.”
The way confidentiality clauses can silence victims came to public attention when several women who said they had been sexually abused by movie mogul Harvey Weinstein came forward in 2017, launching the #MeToo movement. Some victims said they had been afraid to speak up because of what it would have done to their careers. Others pointed to the settlement agreements they had signed, with ubiquitous NDAs.
Christians opposed to confidentiality agreements say they create a similar problem in ministry. Even though there are certainly some things that should be kept confidential, the broad legal agreements conceal abuse and limit accountability.
Ben Nicholson, a British man who led the Zimbabwe arm of the international Christian charity Tearfund, left the organization in a dispute about visa status after reporting on the mismanagement of a sexual assault report. He believed he had done his duty as a whistleblower and accepted a severance, which included a confidentiality clause.
Later, he came to the conclusion that because he signed an NDA, Tearfund could bury the report he’d hoped would bring a broader reckoning.
“I’m not against settlement as a process,” said Nicholson, another organizer of the #NDAfree campaign. “But using payment and NDAs as a way to not investigate something, that’s totally unacceptable.”
Tearfund disputes the allegation. In an official statement to CT, the charity said that “We have never used a confidentiality clause to cover up wrongdoing and our settlement agreements make clear that they do not in any way prevent the individual from raising any concerns with relevant regulatory bodies.”
Nicholson used his settlement money from Tearfund to earn a master’s degree, writing his thesis critiquing Christians’ use of non-disclosure agreements. He argues that there are legitimate uses for NDAs but the way they’re currently used in most ministries does not comport with Christian values.
Rolling back the use of confidentiality clauses
In April, Tearfund announced that it “will no longer use confidentiality clauses … in settlement agreements.” It will maintain NDAs in “very exceptional circumstances,” where necessary to protect the identity of a victim or someone who is vulnerable. But Tearfund agrees “to mutually lift existing confidentiality clauses from anyone who has signed one with us as part of a settlement agreement.”
The hope, for the organizers of #NDAfree, is that this is just the start and more organizations will roll back their use of confidentiality agreements. But even if Christian organizations don’t release people from their NDAs, the campaign aims to warn people about the high cost of silence.
Chris Sather thinks about what difference an awareness campaign might have made to her and her husband when they sat in a private conference room with a workman’s compensation rep, looking at paperwork that promised them a way out of a bad situation.
In that moment, she said, they didn’t realize an NDA would mean living with the knowledge that the abuse they suffered could happen again and again, and they wouldn’t be allowed to say anything.
“There’s no healing, no repentance, if you don’t talk about it. It’s just going to get swept under the rug,” she said. “It’s really wicked. I think it’s wicked.”