Kesha, the Justice System, and Rape

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Back in 2014, Kesha Rose Sebert, known by the stage name of Ke$ha, filed a lawsuit against her producer Lukasz “Dr. Luke” Gottwald, seeking to free herself from her recording contracts with him. The lawsuit alleges that the defendant committed serious emotional, physical, and sexual abuses against her. It paints the picture of an evil and calculating man who tortured Kesha to the point of making her unable to live a normal life, being constantly victimized. In response, the defendant filed a countersuit against Kesha for defamation.

While those lawsuits makes their way through the court system, Kesha and her lawyers requested a preliminary injunction from a New York court. If granted, this would have allowed Kesha to temporarily free herself from her contracts while a decision is rendered in the other cases.

In her request for an injunction, Kesha claims that being unable to record with anybody but her alleged rapist and his company effectively deprives her of a means to make a living. As the request reads:

“Kesha now faces an abysmal decision: work with her alleged abuser […] or idly and passively wait as her career tick-tocks away.”

It is an emotional case, and one that has gained quite a bit of traction on the internet. As a matter of fact, even the request for injunction refers to this popular feeling:

“But Kesha and Dr. Luke are not the only people who matter here, and they are not the only ones to consider when balancing the equities […] Here, the interests of the general public favor granting the injunction. This case involves issues of rape, gender violence, and power, and the world is watching. #FreedomforKesha has been trending on Twitter and Facebook—an expression of support for Kesha by thousands of people. […] Since October 2014, there have been over 360 articles about this lawsuit and Kesha’s California lawsuit that prompted it […] In nearly all of them, the spotlight is on one critical and tragically relevant question: What happens to a woman who comes forward and reveals that she has been abused? No one can dispute that society has an interest in encouraging victims of sex crimes to report them. […] Kesha has done so. Dr. Luke’s continued reliance on deposition testimony by Kesha is no better than a classic abuser relying on a recantation by his abuse victim. Prosecutors around the country still pursue these cases because they understand the imbalance of power in an abusive relationship. Kesha really needs the Court to help.”

They’re referring to 2011 depositions given by Kesha and her mother, in a separate proceeding, and in which both flatly denied any sexual misconduct by Dr. Luke against the singer. Her lawyers claim that these statements were given under duress, as she was too afraid to testify against her alleged abuser.

The referenced social media support exploited last Friday, after a NY judge refused to grant the injunction. Although an official transcript of the decision has not been released, it has been reported that the lack of medical evidence substantiating the rape accusation played a role in the judge’s decision. Reportedly, Judge Shirley Kornreich considered that the contract in question was “heavily negotiated and typical for the industry,” and that the fact that Kesha had been offered the chance to work without Dr. Luke, and yet she chose not to do so, hurt her argument. The Judge, in the end, did what she considered “the commercially reasonable thing” and denied the request for injunction.

The decision by the court resulted in outrage. Lena Dunham (a strange spokesperson for victims, seeing that she openly talked about molesting her younger sister) wrote a dramatic piece in her vanity publication, deriding the court’s decision:

“The photos of her beautiful face crumpled with tears, the legally necessary but sickening use of the word “alleged” over and over in reference to the assault she says she remembers so vividly — it all created a special brand of nausea that comes when public events intersect with your most private triggers.”

Demonstrating a surprising lack of understanding about the cornerstones of our legal system, Dunham (whose piece has been lauded all over as some sort of “powerful” illuminating civil rights work) seems eager to do away with the presumption of innocence and the way the burden of proof works. Judges are not supposed to take an accusation at face value, neither in contract nor in criminal matters; they are supposed to weigh in the evidence before reaching a decision. In this case, the judge had to consider whether there were enough reasons to justify making Sony Music, Kesha’s label, lose a large amount of profits by allowing her to record with somebody else. Sony argued that they had invested a lot of money in Kesha, so letting her leave at this point, even if only temporarily, would represent an enormous loss of revenue. Although the judge was supposed to balance this with the accusations put forward by Kesha, the lack of any evidence substantiating her allegations, aside from her words and those of her mother (contradicted by their own previous sworn statements) made the judge’s decision quite easy.

Although Dunham did not have any legal arguments against the judge’s decision, this did not stop her from going into an insane tangent and speak about domestic abuse, feminism, and visitation rights of rapists. She even seems willing to admit that, legally, Kesha did not have a solid ground for her claim:

“The fact is, Kesha will never have a doctor’s note. She will never have a videotape that shows us that Gottwald threatened and shamed her, and she will never be able to prove, beyond the power of her testimony, that she is unsafe doing business with this man. And no, none of this was in her contract. But what man, what company endeavors to keep a woman saddled with someone who she says has caused her years of trauma, shame, and fear?”

She acknowledges that there’s no evidence, but this does not stop her from referring to the defendant as someone who has caused Kesha years of trauma, shame, and fear.”  This is a problem, because it shows that she is more than happy to use her public persona as a tool to do away with our rules on evidence. But she is not alone in this. Kat George, of Vice, wrote:

“The ruling suggests that Kesha, the alleged victim, is the one who should bear the onus of accusations she’s brought forward, having to prove herself innocent rather than Dr. Luke guilty. Which isn’t exactly how the law is supposed to function. It’s another stark example of the way the court system treats victims, and why it’s so burdensome, and indeed, un-enticing, for victims to report abuse.”

I had to read this passage several times to actually make sure I was understanding it correctly. What Kat seems to be arguing is that it’s wrong that the accuser needs to prove the veracity of their allegations; in fact, we should reverse them so that the accused parties are the ones who need to prove their innocence. In this case, for example, Kesha should not have to prove that she was raped; the defendant should be proving he did not rape her.

This article, as well as many others, goes on a weird rant about how sex crimes are difficult to prove, that using the plaintiff’s previous recantations is “slut shaming,” and even drops the fact that the defendant is a “powerful white male” as an aggravating factor (similarly to how Jezebel implied this decision, by a female judge,was about keeping an uppity woman in her place). Demonstrating even more ignorance about the rule of law, Kat goes on to add:

“Upholding the contract without allowing even temporary deviation from it essentially absolves Dr. Luke—it’s a tacit suggestion that he’s not guilty, or that if he is guilty, Kesha’s accusations are frivolous in the face of more important concerns, like her monetary value to Sony. Heaven forbid an injured woman inconvenience a large corporation from banking checks! The prevailing message is that Kesha signed up for this—and any abuse she’s suffered in the meantime is collateral damage.”

If we apply Kat’s standard, of course, granting the injunction “essentially convicts Dr. Luke,” as it would have been “a tacit suggestion that he’s guilty.” Clearly, that does not seem to be a problem for the writer. Neither is the fact that the alleged injuries have not been proven or accredited in any significant way. The word of the accuser is enough for him.

As The Guardian noted, “last week Kesha had a case. Now she has a cause.” Her situation has become a cause celebre for many, who see the trials and tribulations of this beautiful, white, millionaire, suburbanite as the new frontier for civil rights. The problem is that it is not so. Quite the contrary, the social media attacks against the way the courts have worked show that, in reality, the commitment to freedom and civil rights is not even skin-deep.

By airing her disputes in public, but not filing her case in a criminal court, Kesha’s attorneys have cleverly opted to leave the verdict on the rape to the court of public opinion. Since we will never know if Dr. Luke committed the heinous acts he’s accused of, we will only be able to rely on the sentences rendered by Twitter, Instagram, Facebook, and art-school dropout/bloggers. It’s a bizarre tribunal. Here the same people who consider questionable DNA evidence present in the Steven Avery case to be insufficient to convict him for murder, are the same who think mere allegations are enough when it comes to Kesha.

As an attorney, I don’t care about the presumption of innocence simply because it makes things easier for my clients. I care about it because it’s the only way in which we can ensure justice. What should have been merely a contract case became an opportunity for some to stack up on some feminism points, without thinking about exactly what type of justice system we want. We cannot have it both ways. We cannot talk about some people being unfairly targeted by the police and the courts without evidence, while at the same time lamenting that courts don’t rule against others despite the lack of evidence.

If Kesha was raped, if her allegations are true, I sincerely hope she gets the legal relief she deserves, and that eventually charges are filed against her attacker and he’s sent to prison. Until we can prove that, however, we should stay clear of making the same mistakes of public crucifixions that we saw with the Duke Lacrosse Team rape case, or the Rolling Stone rape scares. Both of these cases showed that there is a very good reason why, as a society, we’ve moved away from lynch mobs, kangaroo courts and, in general, trials “by public opinion”