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“一个女孩值多少钱?”遭受性侵后还有更痛苦的后遗症

Mary Pilon 2019年07月08日

对于曾经受到美国前体操医生性侵犯的运动员和病人来说,协商和解时的估算金额导致了另一种创伤。

2018年1月24日,瑞秋·丹霍兰德走进密西根州的法庭,讲述小时候被拉里·纳萨尔性侵的经历。拉里·纳萨尔曾经长期担任美国体操队的队医,也是密歇根州立大学的医生,宣判听证会上共有近150位女性宣读了影响声明,瑞秋最后一位出庭。

34岁的丹霍兰德曾经是体操运动员,目前已经是四个孩子的母亲,从事律师行业,倡导保护儿童安全。在结束陈述时,她提出了一个问题:

“一个女孩值多少钱?”

几十年来,纳萨尔作为医生在密歇根州立大学(MSU)为运动员提供治疗,也曾经在美国体操队担任队医,因此有机会对众多女孩实施性侵。2016年9月,丹霍兰德第一个站出来指控纳萨尔性侵,已经有近500位女性表示曾经受到过纳萨尔的侵犯。一些专家认为受害者可能超过1000人。2017年7月,纳萨尔承认持有儿童色情图片,几个月后承认了性侵未成年人等多项指控。他很可能要在监狱里度过余生。2018年5月,密歇根州立大学同意向起诉的受害人支付5亿美元和解金,这是与性侵相关索赔金额最高的案例之一。

虽然在赔偿金额方面堪称胜利,但丹霍兰德提出的问题真正揭示了受害人的痛苦。

和解代表着漫长而艰难的指控终于结束,也意味着另一个故事的开始。丹霍兰德等受害人一直在跟律师和调解人深入谈判和解资金支付问题。过程中,数百位女性要经历致歉、冷酷的数学计算,也经常要痛苦地叙述性侵过程,尴尬之余,也在了解自己经受的痛苦按照美元算“值多少钱”。

在调解约一年后,很多受害人通过赔偿金额得出了答案。一位女性可能获赔几万美元,够还点信用卡债务,然后搬个家;另一位女性可能获赔好几十万美元,足够支付看心理医生的账单,也能跟其他受害人一起工作。第三位女性获赔金额可能够向她关注的非营利组织捐赠。扣除税费和律师费后,每位受害人拿到支票上的实际金额都远远低于名义获赔数额。而且对很多人来说,这笔钱就是在不断提醒曾经被性侵的伤痛。

为侵犯行为估价对任何人来说都很难接受,不管在金钱、法律还是创伤层面都会造成纠结。积极人士和受害人首先提出,和解不是为了钱,主要是为了伸张正义。再多的钱也无法弥补受到的伤害。最糟糕的是,谈判过程中感觉将成严重受伤的经历变成了固定的美元金额。“相当于将你受到的伤害跟其他女孩相比。”格蕾丝·弗伦奇说,她也曾经是受害者,现在从事市场营销工作,是非营利组织 “受害人之军”的联合发起人,该组织主要帮助遭到性侵的受害人。“我认为很多女孩收到赔偿金之后内心仍然在苦苦挣扎。”

然而不可否认的是,为伤害做系统性量化还是有必要的。相关的资金可以帮受害人支付各种治疗的费用,或补偿停工的损失,对痛苦和忍受也是一种承认。对于被指窝藏或包庇性侵者的机构来说,和解提供了补偿的机会。由此一来机构承认造成的伤害,争取改进,寻找更好的做法,同时也了结了责任,因为收到赔偿的原告一般同意不再起诉。

本次支付谈判有个重要的不同之处,也变成了性侵案件谈判最明显的例子。很多纳萨尔受害者跟之前和解案中的原告不同,并没有签署“沉默条款”或保密协议,以往赔偿机构经常坚持要求签署。(事实上,由于纳萨尔承认的罪行太过恶劣,密歇根州立大学也没有什么立场要求签署类似协议。)

丹霍兰德、弗伦奇和其他很多受害人保留了各项权利,不仅可以讲述曾经遭受侵犯的经历,也可以讨论获得赔偿多困难,而且都是自己发声。正因如此,这群女性在#MeToo运动激发的声讨洪流中成了先锋。不管是非营利机构还是私营公司,公开承认并解决内部存在的性侵和骚扰问题压力都越来越大。

“接受还是拒绝不是律师的决定,而是当事人的决定。”常驻密歇根州兰辛市的律师大卫·米特尔曼说,密歇根州立大学和解过程中,他代表了100多名女性。“很多受害女性都更想提醒大众。”

过去18个月里,丹霍兰德和其他数十位纳萨尔受害人向我介绍了经历,详细描述了法律中常不为人知的阴暗角落。每个和解案中都有一部分内容,包括受害者和调解人之间谈话的具体细节要遵守法律上的保密规则。但将受害人的叙述拼凑起来,就能进一步看清系统协议如何发挥巨大影响,身处系统内的性侵受害人发现既受鼓舞,同时也感到不安。

“可以说密歇根州立大学的解决方案和相关诉讼都采取了法律优先的方式。” 学校的发言人艾米丽·古兰特在一份声明中说。“我认为,学校在处理性侵和受害人问题上学到了很多,也意识到过去几年里对待受害人方面犯了错误。”

丹霍兰德说,她很清楚系统的缺陷,也意识到绝大多数性侵受害人不管在司法系统之内还是之外都很少能够获得补偿。“我们全社会要解决的正是这种缺陷,想获得赔偿,就得付出牺牲。”她说。“这也正是性侵受害人指控施暴者时面临的问题。”

On Jan. 24, 2018, Rachael Denhollander walked into a Michigan courtroom to speak about the sexual abuse she suffered as a child from Larry Nassar. She was the last in an extraordinary procession of nearly 150 women to offer an impact statement at the sentencing hearing of the longtime USA Gymnastics and Michigan State University doctor.

Standing at a podium facing Nassar as her words were beamed out worldwide, Denhollander, a former gymnast—and now herself an attorney, an advocate for child safety, and a 34-year-old mother of four—concluded her statement with a question:

“How much is a little girl worth?”

For decades, Nassar’s work as a doctor treating athletes at Michigan State University (MSU) and for USA Gymnastics helped give him unfettered access to girls and young women that he serially sexually abused. Since Denhollander became the first survivor to publicly accuse the doctor of abuse, in September 2016, an estimated 500 women have come forward saying that they, too, were abused by Nassar. Some experts on the case think that number could eventually pass 1,000. In July 2017, Nassar pleaded guilty to child pornography charges, and months later, he pleaded guilty to multiple counts of sexual assault of minors. He will likely spend the rest of his life behind bars. In May 2018, MSU agreed to pay a $500 million settlement to victims who had sued the university, among the largest sums ever paid in relation to sex-abuse claims.

As a consequence of that financial victory, Denhollander’s question has taken on a painfully literal meaning.

While the settlement represented the end of one long, difficult story, it signaled the beginning of another. Survivors like Denhollander have been deep in negotiations with lawyers and mediators over the disbursement of the settlement funds. In a process that involves an awkward combination of apologetic recognition, dispassionate mathematics, and, often, a torturous recounting of abuse, hundreds of women are learning what their suffering was “worth” in dollar terms.

Roughly a year into the mediation process, many of the survivors have now received their answers—in decisions about their payouts, known as allocations. For one woman, it was a low five-figure sum that will help her retire credit card debt and relocate; for another, it was an amount in the high six figures, enough to cover bills related to her mental health treatment and to enable her to work with other survivors. For a third, it’s a donation to a nonprofit she cares about. For each, the check will be worth considerably less than its face value, after taxes and attorneys’ fees. And for many, the money itself is a hurtful reminder of the abuse that took place.

The idea of a process that attaches financial value to acts of abuse is appealing to no one, presenting a challenging tangle of money, law, and trauma. Advocates and survivors are the first to say that settlements are more about a sense of justice than about money; no sum could ever compensate for the damage done. At its worst, the process can feel like an invasive haggle that reduces the experience of profound harm to a flat dollar figure. “It’s the trauma you went through, basically, being ranked against [that of] other girls,” says Grace French, a ¬Nassar survivor who works in marketing and is a cofounder of the Army of Survivors, a nonprofit that helps those who have experienced abuse. “I do think a lot of girls are still struggling with that after getting that number.”

Still, there’s an undeniable need for a systematic way to quantify the harm of abuse. The funds can enable survivors to afford therapy, help with medical bills, or provide reimbursement for lost work time, as well as acknowledge pain and suffering. And for institutions accused of harboring or covering up for an abuser, settlements offer an opportunity for restitution. It’s a chance to acknowledge the harm they’ve enabled and commit to a new, better path—but also to close the book on their liability, since plaintiffs who receive disbursements generally agree not to sue again.

The disbursement talks also bear an important distinction: They’ve become arguably the most visible example to date of how the process works in sex-abuse cases. Unlike plaintiffs in past settlements, many Nassar survivors haven’t signed the “silence clauses,” or nondisclosure agreements, that are often insisted upon by the institutions making the payments. (Indeed, the magnitude of Nassar’s admitted crimes may have taken away any leverage MSU might have had to press for such clauses.)

Denhollander and French and many other survivors have retained the right to talk not only about the abuse they underwent but also about the difficulty of getting financial redress—and they’re using their voices. That, in turn, has put them in the vanguard of a broader trend catalyzed by the #MeToo movement: a growing pressure on both not-for-profit institutions and private companies to publicly acknowledge and address problems of abuse and harassment within their ranks.

“It’s not a lawyer’s decision; it’s a client’s decision whether to accept or reject an offer,” says David Mittleman, a Lansing-based lawyer who represents more than 100 of the women in the MSU settlements. “And many want to be on the side of alerting the public.”

Over the past 18 months, Denhollander and dozens of other Nassar survivors spoke with me about their experiences, offering a detailed description of a corner of the law that is often shrouded in secrecy. Some elements of any settlement process, including details of specific conversations between survivors and mediators, are shielded by legal confidentiality rules. But together, the survivors’ accounts offer a close look at the protocols of a system that can wield tremendous influence, in ways that victims of abuse can find both empowering and upsetting.

“It’s fair to say that MSU’s approach to the settlement and related lawsuits is a legal-first approach,” Emily Guerrant, a spokeswoman for the school, said in a statement. “I think we, as a university, have learned a lot about dealing with sexual assault and survivors, and realize that we’ve made mistakes during the past few years in how survivors were treated.”

Denhollander says that she’s keenly aware of the system’s flaws and equally aware that the vast majority of sexual-assault survivors seldom receive any remedy, in or out of the justice system. “That’s something that societally we need to wrestle with—that that kind of sacrifice is what it takes” to win redress, she says. “That’s what sexual-assault survivors are up against when they go to report their abuser.”

****

和解案中赔偿金的分配十分混乱。“我从来没有接过如此广受批评的赔偿案。”哈佛大学、哥伦比亚大学和纽约大学法学院的前副教授肯尼斯·范伯格说。“跟领域有关。”

范伯格是全世界最了解该领域的院长。20世纪80年代他曾经是橙色剂诉讼领域的“专家”,协助制定了现代和解模板,最终陶氏化学、孟山都和其他公司为受脱叶剂毒害的越战退伍军人设立基金。此后范伯格负责监管一个基金,曾经向2001年9月11日恐怖袭击中失去亲人的家庭支付71.4亿美元(2002年的《财富》杂志刊发过专题报道)。目前他正与联合管理者卡米尔·S·比罗斯合作,补偿天主教会性侵案的受害人。“用金钱补偿损失没有什么意义,但美国制度就是这样。”他说,“一对夫妻的儿子在世贸中心袭击中丧生,获得500万美元赔偿,其实毫无价值。”

范伯格指出,即便涉及无法量化的数字,调解人也希望让受害人明确了解赔偿系统如何运行。和解金额的范围通常由原告和辩护律师决定,由调解人最终确定个人赔偿金额范围。比如管理“9·11”基金时,范伯格为每位受害人设定了25万美元的统一赔偿金额,为每位幸存的配偶和被抚养人设定了额外的10万美元,避免了鉴定哪家受损失更严重的尴尬。然后他根据劳工统计局的数据,为每位受害人增加了一些因素,比如估算的工资损失。他表示,最后5300起索赔没有两笔金额相同。“必须要有方法论。”他说。

然而在性侵案件中,方法论似乎过于简单化,甚至有些残忍。据报道,几十年来,罗马天主教会的奥尔托纳-约翰斯顿教区向受到神职人员和其他人员侵犯的受害人赔偿了1500多万美元。2016年,宾夕法尼亚州总检察长办公室强烈批评教区处理案件方式,在报告中公布了一张图表,一位主教曾经用该图表确定赔偿金额。报告抨击的图表正是“冷酷官僚作风”的例子,其中有两个栏目:“虐待程度”和“赔偿金额范围”。一行是“隔着衣服,抚摸生殖器,10000-25000美元”;另一行是“鸡奸;性交,50000-175000美元”。

Distributing funds from a settlement is at best messy. “I don’t think I’ve ever done a compensation program where there hasn’t been some criticism,” says Kenneth Feinberg, a former adjunct professor at Harvard, Columbia, and NYU law schools. “It comes with the territory.”

Feinberg is the closest thing the world has to a dean of the subject. He was the “special master” on the case that set the template for modern settlements—the Agent Orange litigation in the 1980s, which ended with Dow Chemical, Monsanto, and other companies creating a fund for Vietnam War veterans who had been harmed by the defoliant. Since then, Feinberg has overseen a fund that distributed $7.14 billion to families who lost loved ones in the Sept. 11, 2001, terrorist attacks (a process Fortune documented in a 2002 feature); he’s currently working with survivors of sexual assault in cases involving the Catholic Church with co-administrator Camille S. Biros. “Money is a very poor substitute for damage, for loss, but that’s the American system,” he says. “Offering a family $5 million for the death of their son at the World Trade Center, it’s rather hollow.”

A mediator’s goals, Feinberg notes, include being transparent with survivors about the workings of that system—even when that involves assigning numbers to the immeasurable. The range of settlement sums is usually determined by plaintiff and defense lawyers, but it’s the mediator’s discretion to determine where an individual’s compensation falls. In administering the 9/11 fund, for example, Feinberg set a flat rate of $250,000 for pain and suffering for each victim and an additional $100,000 for each surviving spouse and dependent, avoiding the dilemma of determining whether one suffered more than another. For each victim, he then added factors such as likely lost wages based on Bureau of Labor Statistics data. The result, he says, was 5,300 eligible claims with no two identical amounts. “You have to have a methodology,” he says.

In sex-abuse cases, however, methodology can seem simplistic to the point of cruelty. The Altoona-Johnstown diocese of the Roman Catholic Church has reportedly paid out more than $15 million to survivors of abuse by its clergy and other employees over the decades. In 2016, in a blistering report criticizing the diocese’s handling of the cases, the Pennsylvania state attorney general’s office published a chart that one bishop had used to determine payouts. The chart, which the report blasted as an example of “cold bureaucracy,” featured two columns: “Level of Abuse” and “Range of Payment.” One line reads, “above clothing, genital fondling, $10,000–$25,000.” Another reads, “Sodomy; Intercourse, $50,000–$175,000.”

丹霍兰德(左,站在讲台前)在拉里·纳萨尔的宣判听证会上宣读“影响声明”。图片来源:Jeff Kowalsky—AFP/Getty Images

现实中,性侵的危害远远超出了行为本身,包括一系列情感创伤、身心障碍和生理疼痛。区分不同类型的痛苦确实很重要,但也对受害人造成了严重的后果。专家说,在某种程度上,和解谈判代表必须就如何将经历转化为具体数字达成一致。保险公司的精算师设计打分系统确定金额。系统通常根据“类似”案例确定,量化性侵对受害人受到的伤害,同时预测性侵的持续性影响。

在纳萨尔案中,密歇根州5亿美元的和解资金里有4.25亿美元分给了2017年12月6日之前提出诉讼的330多位申请人。剩余的7500万美元分给该日期之后提出诉讼的受害人。(第二波起诉中已有160人,有些人因此担心资金是否足够。)据知情人士透露,大约三分之一的人要支付律师费,包括和解过程中等候的时间。

安排4.25亿美元资金的任务落在了加州前任法官威廉·贝蒂内利身上,去年7月他获得监督此案的联邦地方法院任命。(他的报酬也包括在和解总金额里。)根据贝蒂内利公司的网站,他从事职业调解人约30年,曾经调停灾难性人身伤害、非法死亡索赔和环境灾难等案件。几个月来我们一直争取采访,但他的办公室并未答复。

了解密歇根州立大学案件的人士称,贝蒂内利有权批准每人不超过7位数(扣除税费前)的赔偿金。知情人士说,贝蒂内利遵循了 “划拨协议”,包括电话采访受害人以评估和解金额。贝蒂内利可能会问:性侵是否发生在未成年人身上、性侵持续的时间和频率,以及性侵行为本身的性质。调解人还要考虑到受害人因勇敢指控而面临的风险,或者因为指控而面临的报复。

很多情况下,受害人可能提出一些审判中并未出现的证据,例如心理评估和账单等。一些受害人提交了记录性侵次数的日记。新证据可以作为书面文件提交给调解人,也可以在会谈时提,或者每次都说。

In practice, the harmful effects of sexual abuse spread far beyond the acts themselves, encompassing a spectrum of emotional trauma, disability, and physical pain. Distinctions among kinds of suffering do matter, with huge consequences for survivors. But at some point, experts say, settlement negotiators have to agree on how to translate those distinctions into raw numbers. Actuaries for insurers sometimes devise point systems to determine how to allocate payouts. Those systems are often determined based on “peer” cases, with criteria intended to quantify how a survivor has been affected since the assault, and to project how the assault could continue to affect that person.

The $500 million Michigan State settlement in the Nassar case allocates $425 million to more than 330 claimants who came forward to sue before Dec. 6, 2017; the remaining $75 million is set aside for survivors who came forward after that date. (There are already 160 people in that second wave, sparking concerns about whether the fund is sufficient.) Roughly one-third will pay for fees for attorneys, including for time spent in the settlement process, according to someone familiar with the matter.

The task of distributing the $425 million pool falls to William Bettinelli, a former California judge who was appointed last July by the federal district court overseeing the case. (He is being paid from the overall settlement sum, as well.) In roughly 30 years as a professional mediator, Bettinelli has mediated cases involving catastrophic personal injuries, wrongful death claims, and environmental disasters, according to his firm’s website; his office did not respond to multiple requests for interviews over several months.

According to people familiar with the MSU case, Bettinelli has authorization to approve payouts of up to the low seven figures per person (before taxes and fees). People with knowledge of the process say Bettinelli is following an “allocation protocol” that includes conducting phone interviews with survivors to assess their settlement amount. Among the questions Bettinelli may ask: whether the abuse happened to them as minors, the duration and frequency of the abuse, and the nature of the abusive acts themselves. The mediator can also take into account such factors as the risk a survivor incurred by coming forward or any retaliation she faced for blowing the whistle.

In many cases, a survivor may bring forward evidence that wasn’t used in Nassar’s trials—psychologist evaluations and bills, for example. Several survivors submitted journal entries documenting the toll of abuse. New evidence can be submitted to the mediator as paperwork, be brought up in a meeting, or both.

格雷斯·弗伦奇是纳萨尔案的几名原告之一,目前正在帮助其他遭到性侵的受害人做宣传工作。图片来源:Photograph by Ali Lapetina for Fortune

和解过程的目标之一是,受害人不必为了获得赔偿重新诉讼。尽管如此,索赔人还是要经常叙述的可怕细节,特别是审判记录里没有的信息。即便受害人证据非常充分,复述也可能很可怕。

多位原告的律师米特尔曼表示,当事人报告的负面影响包括自杀未遂、高昂的精神病院住院费、脱发、胃肠道问题和睡眠障碍等。性侵受害人经常要接受心理咨询,每个疗程花费150到300美元,一周或一个月多个疗程,通常持续数年。不少人失业,也有人因此婚姻破裂。

和解金额估算时理应考虑所有相关因素。但米特尔曼和其他积极人士表示,有时谈判过分强调性侵的次数或持续时间。在谈到大量伤害时,米特尔曼问道:“60次或100次性侵真有必要比性侵一次多获赔偿吗?在我看来,一次已经算很多了。”

One goal of a settlement process is that survivors won’t have to relitigate their case in order to receive their claims. Still, claimants often find themselves recounting horrific details of their experience—especially if that information doesn’t already exist in a trial record. And those conversations, even when a survivor stands on a mountain of evidence, can be awful.

Among the harmful impacts that Mittleman, the lawyer for many of the plaintiffs, says his clients have reported are attempted suicide, bills for stays at psychiatric hospitals, hair loss, gastrointestinal issues, and sleep disturbance. It’s not uncommon for therapy for those coping with the consequences of abuse to cost $150 to $300 per session, with multiple sessions a week or month, often for years. Jobs have been lost, marriages frayed.

The math of a settlement process ideally takes all of this into account. But Mittleman and other advocates say that talks sometimes place excessive emphasis on the number or duration of the assaults. In the context of wide-ranging harm, Mittleman asks, “Is 60 or 100 penetrations really worth more than one time? Because in my opinion, one time is too many.”

****

调解人或专家的另一目标是公平和迅速。决定受害者赔偿金额,也是为受害女性痛苦估价的会谈通常很短。大多数情况下,调解人的决定不接受上诉。所以赔偿金额是最终数字。

与我交谈的部分受害者认为收到的赔偿金还算公平合适,其他人并不同意。对很多人来说,和解之后进入了新的困难阶段,因为她们意识到单靠钱很难纠正错误。

在20世纪90年代初,唐娜·马卡姆的女儿切尔西加入了密歇根州的运动队,梦想着像卧室墙上海报的英雄们一样代表国家参加奥运会。根据检察官的指控,切尔西小时候预约看病时遭到纳萨尔性侵。之后她开始吸毒、酗酒、抑郁和愤怒,2009年自杀。当年她才23岁。

马卡姆收到了赔偿金,但对赔偿金估算感到困惑,也被繁复的文书和流程弄得不胜其扰。马卡姆说,性侵“只会侵蚀自我价值和自尊”。她真切感受到这一事实,但感觉和解过程很难体现。“不能为人命定价。” 马卡姆说。“切尔西原本有大好人生,如何判断该补偿多少呢?”在马卡姆看来,最重要的赔偿并不是金钱。她与案中其他女性密切联系,为受到伤害的人们积极发声。“我没有指望从中得到什么。”马卡姆说。“只想让更多人知道切尔西的故事。”

一些受害人选择不跟贝蒂内利交谈。她们已经在法律程序中提交了证词或影响报告,可以拿文件记录说话。摩根·麦考尔上高中便加入了起诉纳萨尔的组织,如今就读于密歇根大学:“我只是觉得(谈判)是件不必要的事。”她说。今年早些时候麦考尔收到了赔偿金。“生活并没有因为钱而改变。”她说。“但和解和收到赔偿之前一年半里有很多焦虑,我不断问自己,因为无法量化的痛苦收到支票在道德上到底能否站住脚。”麦考尔将焦虑转化为积极行动,“把可怕的经历变为能够帮助他人的经验。”

虽然与密歇根州立大学和解的受害人可以公开披露收到的赔偿金,但这并不是一个好选择。一方面谈论钱数可能导致受害人受欺诈,也可能有人指责她们站出来指控是为了钱。还可能跟朋友、家人以及其他受害人产生冲突。密歇根州立大学案例中的一些受害人介绍了其中的第22条军规:韧性强又足够幸运的女性能够尽早获得帮助,也容易避免受重创,她们有时觉得拒绝会影响自己的经济利益,反过来,支票上金额更高可能意味着受的苦比大多数人多。受害人表示,比较的感觉很怪,而且某种意义上说赔偿金正是受性侵的证据。正如受害人之军的联合发起人弗伦奇所说,“拿支票取钱时感觉很脏。”

One of the aims of a mediator or special master is to be both fair and swift. Meetings to determine a survivor’s payout—the worth of her suffering—can be surprisingly short, and in most cases, the mediator’s decision isn’t open to appeal. The number is final.

Some Nassar survivors I spoke with felt that the amount of money they received was fair and appropriate; others didn’t. And for many, a newly difficult phase began after the settlement—as they realized that money alone couldn’t right what had been made wrong.

Donna Markham’s daughter Chelsey was one of countless girls who bounded into gyms in Michigan in the early 1990s in hopes of making an Olympic team, like the heroes who graced the posters on her bedroom wall. As a child, prosecutors allege, Chelsey was sexually assaulted by Nassar during a doctor appointment. After the abuse, she spiraled into drugs, alcohol, depression, and angry spells that culminated with her taking her own life in 2009. She was 23 years old.

Markham has received her allocation, and she’s one of several survivors who felt perplexed by the math behind the payout and overwhelmed by the paperwork and logistics. Abuse “just eats away at your self-worth, your self-esteem,” Markham says. That fact, so clear to her, was something she felt the process couldn’t account for. “You can’t put a price on a human life,” Markham says. “And how do you make a determination on an award settlement when Chelsey had her entire life ahead of her?” In Markham’s telling, the most important outcome of the process wasn’t monetary: She has forged strong bonds with other women involved in the case and is engaged in advocacy work for those who were harmed. “I didn’t expect to get anything,” Markham says. “I just wanted Chelsey’s story to be told.”

Some survivors opted not to talk with Bettinelli. Having already testified in legal proceedings or given impact statements, they could let those records speak for them. Morgan ¬McCaul, who was a high school student when she joined the group suing Nassar, is now enrolled at the University of Michigan: “I just felt like [a meeting] would be another thing on my plate that was unnecessary,” she says. McCaul received a payout earlier this year. “My life has not changed” as a result of the money, she says. “But I do know that I had a lot of anxiety in the year and a half leading up to the settlement disbursement, asking myself if it’s ethically sound to be handed a check for something that can never be quantified.” McCaul has channeled that energy into activism, to “leverage this horrible experience into something that can help other people.”

While nothing bars MSU settlement participants from publicly disclosing the sum they received, doing so is not considered a best practice: Talking about the number can make survivors prey to fraud or to criticism that they were fiscally motivated. It can also create conflict with friends or family—and with fellow survivors. Some survivors in the MSU case describe a catch-22 inherent in the process: Those who were resilient and fortunate enough to find help earlier, or to avoid the most severe trauma, sometimes felt that saying so was against their financial self-interest—or, conversely, that a larger check might mean you suffered more than most. That sense of awkward comparison, survivors say, adds to the pain of knowing that the allocation money is, in a sense, evidence of the abuse. As French, the Army of Survivors cofounder, says, “You cash that check, and it feels dirty.”

****

奥运会金牌得主麦卡拉·马罗尼说自己也曾经受到拉里·纳赛尔的侵犯。在纳萨尔被捕之前,她与管理机构美国体操协会达成125万美元的和解,其中有保密条款。在纳萨尔性侵行为曝光后,协会因为封口马罗尼并掩饰纳萨尔的行为而广受批评,也声称不会强制执行保密条款。

针对纳萨尔的指控爆发后,审查性侵和性骚扰案件中滥用保密协议方面也发挥了重要作用。过去保密协议应用普遍,尤其跟天主教会性侵相关的案件中。Vanderbilt Law Review指出,数据显示美国超过三分之一的员工受保密协议限制。批评人士指出,原本用于保护商业秘密的保密话术反而用来限制员工公开讨论办公室问题,也包括性骚扰。

“保密规定掩盖了很多事。”布鲁克林法学院教授、就业法诊所主任米纳·J·科特金表示。“我们了解的只是开头。”

科特金说,密歇根州立大学和解案中不需要保密协议,反映出人们考虑性侵问题发生了比较大的转变。人们曾经认为性侵是私人的事,代表着个人与更强大的权威人物或机构相抗衡,现在则视为社会的毒瘤或传染病,是应该提醒其他人关注的威胁。

该效应在企业中的作用能有多广泛还很难判断。一些积极人士警告称,完全取消保密条款可能会对受害人产生不利影响,如此一来会刺激性侵者打官司,而不是和解。尽管如此,包括纽约和加州在内的12个州已经通过法律,在骚扰和举报性侵方面缩小保密协议应用的范围。2017年年底微软曾经表示,经已取消员工公开指控性骚扰的保密协议。其他公司也紧跟其后,有些公司则是内部丑闻传出之后才开始。

调解人范伯格认为,保密的责任应该对调。“我认为机构保密非常非常重要。”他说。“但如果受害人想(大声说出实情),是值得鼓励的。”这代表着力量从机构向受害人转移。

尽管会很痛苦,很长一段时间内还是可能有不少受害人发声。需要解决的问题是,如果出现更多受害人,密歇根州立大学会不会扩大和解基金的规模,以及如何支付额外赔偿。同样迫在眉睫的还有针对美国体操协会和美国奥委会(USOC)的诉讼。多年来美国体操队一直让纳赛尔担任队医,现在面临约350名原告提出的100起诉讼。去年12月,体操协会根据破产法第11章申请破产,导致诉讼和调解讨论都停滞不前。(美国体操协会的发言人莱斯利·金表示,协会“一直注重保护运动员的安全和福利”。)

在与各机构争论不休之后,瑞秋·丹霍兰德认为和解流程和一长串跟性侵案相关的问题一样应该解决。她认为,最糟糕的一点是,赔偿之后机构就不用审视自己的文化,将过往丑事一笔勾销。“(这些机构)完全不想追究哪里出了问题,也不想承认问题,更别提去解决。”她说。

丹霍兰德和其他受害人打算大声疾呼,继续向纳萨尔曾经工作的机构施压。“我们应该从中吸取哪些教训?“她说。“宣判听证会上有那么多女性公开露面。这是全世界第一次看到名字和脸,而且跟性侵联系起来。我们终于不只是纸面上的数字了。”(财富中文网)

本文另一版本登载于《财富》杂志2019年7月刊,标题为《“一个女孩值多少钱?”》。

译者:冯丰

审校:夏林

Olympic gold ¬medalist McKayla Maroney says that she was one of the girls whom Larry Nassar preyed upon. Before his arrest, she received a $1.25 million settlement from the national governing body for the sport, USA Gymnastics—one that included a nondisclosure provision. But after his attacks came to light, the organization faced criticism for effectively covering up Nassar’s behavior by gagging Maroney, and it said that it would not enforce the silence clause.

The cases against Nassar have played a crucial role in intensifying scrutiny of the use of nondisclosure agreements in abuse and harassment cases. Such NDAs have historically been ubiquitous—notably in agreements involving abuse in the Catholic Church. In the private sector, the Vanderbilt Law Review points to data showing over one-third of the American workforce is subject to NDAs. There, critics note, nondisclosure language originally intended to protect trade secrets has been stretched to curb an employee’s right to speak out about workplace issues including sexual harassment.

“So much has been shielded by confidentiality,” says Minna J. Kotkin, a professor at Brooklyn Law School and director of its Employment Law Clinic. “We’re just beginning to know the start.”

The fact that many MSU settlements didn’t require NDAs reflects a broader shift in thinking about abuse, says Kotkin. What were once thought of as private matters that pitted the reputation of vulnerable individuals against those of more powerful authority figures or institutions are coming to be seen as a societal toxin or contagion—the kind of threat about which others should be warned.

It’s difficult to measure how widely this effect is playing out at companies. Some advocates warn that taking silence clauses completely off the table could work against survivors, by encouraging abusers to litigate rather than settle. Still, 12 states, including New York and California, have passed laws to narrow the scope of NDAs in harassment and sexual-assault whistleblowing. Microsoft said in late 2017 that it had removed NDAs involving employees who speak up about sexual harassment; other companies have followed suit, some after scandals within their ranks.

Feinberg, the mediator, argues that the onus for silence should be reversed. “I think it’s very, very important that the institution agree to confidentiality,” he says. “But if the individual victim wants to [speak out], I think that’s to be encouraged.” That represents a shift in the power balance, from the institution to the survivor.

Painful though it will be, many Nassar survivors will likely be speaking out for a long time. Yet to be resolved is whether MSU will expand its settlement fund if more victims come forward, and how it would pay additional costs. Also looming are lawsuits against USA Gymnastics and the U.S. Olympic Committee (USOC). USA Gymnastics enlisted Nassar as a team doctor for years and now faces 100 lawsuits from roughly 350 plaintiffs. In December it filed for Chapter 11 bankruptcy, a move that put the brakes on both the lawsuits and mediation discussions. (Leslie King, a spokeswoman for USA Gymnastics, says that the organization “has focused on keeping athlete safety and well-being at the forefront of its efforts.”)

Wrangling with these institutions has led Rachael Denhollander to put the settlement process on a long list of issues tied to abuse cases that she believes should change. At worst, she argues, the payments absolve big players of examining their own cultures, giving them in essence a clean slate. “There is a complete refusal to want to discover what went wrong, to admit what went wrong, and to deal with it,” she says.

Denhollander and her fellow survivors plan to speak up to keep pressure on the institutions where Nassar worked. “What lessons do we need to take away from this?” she says. “That sentencing hearing was so many women coming forward publicly. It was the first time the entire world has gotten to see names and faces and [connect them] with the idea of sexual assault. We weren’t just numbers anymore.”

A version of this article appears in the July 2019 issue of Fortune with the headline “‘How Much Is a Little Girl Worth?’”

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