Signed with silence

Ben Nicholson spent 12 years working in Zimbabwe for Tearfund, a Christian charity based in the United Kingdom. Formed in 1968, Tearfund is a humanitarian organization that partners with churches and Christian groups around the world to fight poverty.

But in 2018, Nicholson said, he internally blew the whistle on what he calls a “safeguarding incident” at the organization. A few months later, Tearfund laid him off. To Nicholson, the move felt retaliatory.

Tearfund spokeswoman Sarah Greenwood told me, without naming Nicholson, that the organization terminated his contract because he “no longer had the legal right to work” in Zimbabwe. “He was not treated unfairly nor dismissed because he had raised concerns,” said Greenwood.

After Nicholson filed a grievance and an appeal of his dismissal, the organization offered him a financial settlement containing a nondisclosure agreement, or NDA, requiring him to keep certain circumstances around the termination of his employment confidential. Nicholson sought advice from a Christian lawyer, who said to take the settlement and sign the NDA. Nicholson did so.

In the following months, he grew increasingly frustrated over the NDA he signed, feeling that it limited what he could say regarding his concerns about the organization. “If I can’t hold people senior to me at a Christian organization to account without fear of being sued,” he wondered, “what else can’t I speak about?”

He ultimately used some of his settlement money to pursue a master’s degree and, last year, to write a thesis arguing NDAs in a Christian setting are theologically inappropriate. NDAs, he argued, prevent transparency and truthfulness, and because they prioritize the institution’s image over possible victims, they are incompatible with the Christian value of “servant leadership.” He also argued they are an inappropriate way for Christians to deal with organizational conflict.

“My prayer is that this thesis will challenge increasingly accepted norms in employment relations in Christian organizations and local churches, influencing policy on the use of NDAs,” he wrote.

In April of this year, Tearfund renounced NDAs. It is one of several large Christian organizations and churches that recently have publicly committed not to use such clauses following criticism they allow institutions to hide wrongdoing. But even with public pressure on organizations to avoid requiring NDAs as a condition of settlements or severance, legal realities and recent history suggest it may be tough to eradicate them completely.

According to Nicholson, the same day in April that Tearfund posted its statement about NDAs to its website, the organization sent him a new NDA, this one related to protecting the identity of the survivor in the whistleblowing case.

The former Tearfund employee said he has no intention of revealing the survivor’s information, and he understands such narrowly crafted NDAs for purposes of confidentiality can be wise. But, he said, “the irony is fantastic.” Nicholson now works part time as a consultant and the rest of his time on an advocacy campaign against NDAs with Lee Furney, an advocate for abuse victims.

Although Christian ministries have widely used NDAs, some are shifting away from them in an effort to be more transparent and allow victims of abuse or mistreatment to speak about their experiences. The shift comes amid a series of scandals in which critics accused organizations of using NDAs to silence whistleblowers.

“I am noticing more and more organizations being willing to back off their demand for an NDA,” said Boz Tchividjian, a lawyer who represents abuse victims. “I think it is a combination of victims simply refusing to agree to any form of an NDA and organizations realizing the [public relations] risks of demanding one.”

Ravi Zacharias International Ministries, in the wake of an independent report on founder Ravi Zacharias’ sexual misconduct, has begun substantial layoffs and told soon-to-be-former employees they would not be bound by nondisclosure agreements. One of Zacharias’ victims, Lori Anne Thompson, asked the Zacharias family for release from the NDA that came with her settlement, but she has not yet received that release.

In late April, Archbishop of Canterbury Justin Welby told senior staff that the Church of England should not use NDAs. That decision came in the wake of reporting from the BBC that NDAs kept church employees who had experienced racism and received settlements from talking about their experiences. Welby said he didn’t know the settlements had confidentiality agreements attached.

“I have said many times that I am totally against NDAs,” Welby told The Times.

The week after Welby’s announcement, Tearfund announced it would no longer use NDAs but said it was not trying to influence other organizations on the issue. The organization’s statement added, “We have never used a confidentiality clause to cover up wrongdoing.”

In May, Kanakuk Kamps child safety head Rick Braschler spoke to me about the NDA policy at the popular Christian camp, which faces renewed attention on its handling of child abuse cases from a decade ago. In future settlements, Braschler said, “our goal is first and foremost not to have any” NDAs.

None of these organizations will likely cease using NDAs completely. For example, most groups say they might use one if a victim requested it.

Kanakuk’s new policy appears to leave past NDAs in place. An online petition that popped up in late March, and which now has more than 14,000 signatures, asks Kanakuk to release an unidentified number of victims of sexual abuse at their camps from their NDAs.

That petition appeared around the same time that The Dispatch’s David and Nancy French released a series of articles about two former Kanakuk counselors convicted of sexual abuse of children about a decade ago. One, Pete Newman, is serving two consecutive life sentences, plus 30 years, in prison for abusing boys at the camp in the late 1990s and early 2000s. In 2012, another counselor, Lee Bradberry, was arrested and pleaded guilty to abusing boys, though Kanakuk had terminated him immediately after campers reported inappropriate behavior, the organization said at the time. Kanakuk noted it also reported Bradberry to law enforcement.

With the renewed attention on these cases, which didn’t make national news at the time they happened, Kanakuk recently posted an FAQ page on its site about the abuse cases and child safety. One question addresses the use of NDAs.

“Recent articles have accused Kanakuk of using Non-Disclosure Agreements (NDAs) to hide details of abuse and silence victims. This is simply not the case,” the organization wrote. “The overwhelming majority of confidentiality agreements were established in cooperation with the victim to protect their privacy.”

But one victim’s family shared a court document with me from their federal case in 2013. In the case, Kanakuk’s lawyers filed a motion against the family for refusing to sign a nondisparagement clause, part of a confidentiality agreement. The motion requested the family pay legal fees for their “dilatory tactics.”

Asked about the apparent incongruence between those legal tactics and the camp’s comment that it always put victims’ families first, Braschler said, “I’m not sure of the details of the 2013 case you reference, but know that these situations are often complicated.” Braschler added that Kanakuk has worked with third-party insurers on some settlements, so it cannot “unilaterally dictate the terms of confidentiality agreements.”

That can be true when a ministry’s liability insurance, instead of the ministry itself, is covering a settlement with a victim. Experts in this area of law say insurers do have control over settlement terms generally in those cases.

Insurers often include NDAs in settlements out of concern that publicity would encourage more lawsuits, said Dan Kohane, a lawyer in Buffalo, N.Y., who represents insurers nationally in coverage disputes. Kohane added that settlement amounts becoming public could make insurers pay more in future cases: “The next case that comes along will argue that the company paid X and this next case is worth more than X.”

The requirement of confidentiality is not ironclad. Kohane said insurers will try to please organizations paying high premiums, so if a ministry paying high premiums is asking for a settlement without confidentiality, insurers might agree to it. But he said it is often the policyholders, rather than the insurers, who want the NDAs as a part of the settlement to keep the matter quiet. The plaintiff always has to agree to the NDA in the end, but plaintiffs I’ve interviewed often didn’t know they could negotiate about an NDA and still receive a settlement.

Because of insurers handling settlements, legal battles can take place before a victim is even involved. New York courts have seen such disputes over abuse settlements from Catholic dioceses. In 2019, after New York extended the window of time for abuse victims to bring civil suits, the Catholic Archdiocese of New York preemptively sued dozens of insurers that had provided the church with liability insurance. The archdiocese argued the insurers intended to deny the church’s claims for the settlements.

Insurers facing claims from scores of abuse cases from decades ago, where they aren’t even sure if their policies covered the organization or what the policies contained specifically, may still push for settlements.

“If they agree to make a payment, even where they believe their policies may not cover those risks, the last thing they want for themselves and the institutional clients is publicity that the company is paying money on these kinds of claims and encouraging others to bring suit,” said Kohane.

While Nicholson welcomed Tearfund’s announcement it would no longer use NDAs, he’s waiting to see how it plays out. When the U.S. Conference of Catholic Bishops put out a loose ban on NDAs in sex abuse settlements in 2002, confidential settlements still took place in particular dioceses. The USCCB wrote a tighter policy against them.

“The Archbishop will agree that the NDAs are really bad, but when it comes to the HR decisions … a lot of people will actually reach for them,” Nicholson said.

Talking to me on Zoom from France, where he now lives, Nicholson spoke fondly of Tearfund, “a brilliant organization full of brilliant people.” He is discouraged about the internal conflict there, but thinks it would have been less painful without an NDA.

Tearfund’s Greenwood, on the other hand, said the NDA Nicholson signed would not prevent him from reporting wrongdoing to regulatory bodies. She said he had made a number of complaints to regulatory bodies over the last three years, which “have been investigated in detail and none have been upheld.”

She also argued that the organization did not sweep his concerns under the rug.

“Each of the concerns was looked into at the time (and on many occasions since, as he has continued to raise these allegations), although he may not agree with the conclusions reached,” said Greenwood.

This is the kind of internal debate that can spill out into public without a confidentiality agreement. But Nicholson thinks organizations are better off dealing with the mess earlier than later.

“I’ve seen the church jump on the bandwagon of silencing people that they find annoying,” he said. “Yes, reputation is important, but we follow a God who lost everything.”

This week, Tearfund quietly updated its April statement, adding a new paragraph qualifying its NDA renunciation:

“In very exceptional circumstances, some information may need to remain confidential in order to protect the safety, privacy and well-being of other individuals who are vulnerable and to whom we owe a duty of care.”