Free Kesha
To be honest, this isn’t the editorial I planned to write this issue. Rather than a riveting ride through the necessity defence and illegal environmental activism (stay tuned!), I felt compelled to write about Kesha and what’s happening to her.
In case you’re unaware—after being under contract with Dr. Luke as part of since 2005, Kesha filed a suit against him in 2014, alleging he drugged and raped her around the time she signed with him. She has also alleged gender violence, sexual harassment, intentional and negligent infliction of emotional distress and unfair business. The trial will not begin until late next year. In the meantime Kesha filed a motion of injunction to allow her to record outside her current contract with Dr. Luke’s label, which is under Sony. On September 19th, the injunction was denied. Admitting she didn’t totally fully believe Kesha, Judge Shirley Kornreich denied the motion in part because her “instinct [was] to do the commercially reasonable thing.”
When I saw pictures of Kesha crying in the courtroom a couple weeks ago, I was at first disgusted that such an emotional moment was so publically accessible. Swiftly however, that disgust was displaced by a deep and visceral dread.
I remembered walking into a coffee shop to meet a friend and seeing my abusive ex-partner. I remembered calmly getting a coffee, leaving, then throwing it into the garbage and running away as fast as I could as soon as I couldn’t be seen from inside. I remembered my lungs burning and my heart pounding as I cried. I remembered worrying for the next few weeks that he may try to contact me. I remembered how the possibility of interacting with this person was enough to trigger a fight or flight response. I considered being in Kesha’s shoes and was filled with the profoundest dread.
A few days after the ruling came out, I overheard someone agreeing with Judge Kornreich because “there isn’t any proof,” and because if musicians could get out of their contract by alleging sexual assault without proof, everyone would do it. I haven’t taken evidence, but I find it disconcerting that an accuser’s words mean so little that in “he-said-she-said” cases, we say there’s no proof against the accused. If that’s the case, why don’t we also say there isn’t proof the accused didn’t do it? Why are only the words of accuser invalid? I understand to some extent—criminal law is not my jam—the presumption of innocence in criminal cases. But even if this was a criminal case and not a civil one, the presumption of innocence doesn’t make words meaningless, does it? Maybe Kesha’s testimony won’t be enough to convince a judge on a balance of probabilities that Dr. Luke committed the acts she is accusing him of, but we shouldn’t devalue her words to the extent that they offer nothing in the way of evidence.
This statement also showed a lack of understanding of the reality of accusing someone of sexual assault that saddened me to the extent that it physically hurt. How can we on one hand know that public backlash, stress, and professional setbacks are likely when accusing wealthy and/or powerful individuals of sexual assault, and on the other still believe that musicians would come out of the woodwork to accuse powerful, wealthy producers if the judge allowed Kesha to record outside her contract? Obviously Judge Kornreich also held this belief, stating that ruling in Kesha’s favour could set a “troubling precedent” for the recording industry. Why forcing a musician to choose between working with the same company as her alleged abuser and not working at all isn’t at the very least an equally troubling precedent—if not more troubling —is beyond me. As a quick side note, my colleague Ian Mason wrote an article in this issue that discusses the cross-examinations Jian Ghomeshi’s accusers have experienced; I encourage you to read it.
Some ask why Kesha didn’t come forward close to 10 years ago when it first occurred; some ask why this is a civil case and not criminal, because that’s what we’ve been taught to do. We don’t ask why 68% of sexual assault victims don’t come forward. We don’t ask why only 3 out of every 100 rapists will spend even 1 day in jail. We don’t ask why anyone would come forward when they will almost certainly be presumed to be lying. We don’t ask why Dr. Luke is still working after being accused of such deplorable acts and Kesha isn’t.
Some wonder if Kesha is lying to get a “better deal,” because we’re supposed to wonder what the victim is really trying to get. We don’t wonder why producers like Dr. Luke refer to their business as “manufacturing” stars, or why a story about Dr. Luke referred to Kesha as “proving hard to control.” We don’t wonder why we focus on Dr. Luke investing in Kesha when she was the first signing name to his label Kemosabe Records, and is one of the reasons the label received financing from Sony. We don’t wonder why the judge unhesitatingly compared commercial interests to the wellbeing of a human being, why “I cannot work with Dr. Luke. I physically cannot. I don’t feel safe in anyway” translates to “decimat[ing] a contract.” We don’t wonder how the accuser’s interests and the accused’s interests are “not in the least bit mutually exclusive,” as a Sony lawyer stated. We don’t wonder why Sony’s assertions that they will promote Kesha’s best interests are taken at face value, while Kesha’s lawyers statements that they would not are mere “speculations.”
Kesha’s predicament is a terrible one that I cannot truly empathize with, as I have never been forced to work at the same company with my abuser, let alone at the same company where my abuser holds a disproportionate level of power and influence. I can say however that I cannot fathom being in the same situation. Working for the same company as my abuser would quite literally be a nightmare I have in the past, and Kesha—assuming she’s telling the truth, which I do—is living that nightmare. That the justice system has forced her into that nightmare is appalling.