On February 19th, outlets published a photo of singer Kesha sobbing in a courtroom as a judge revealed she’d ruled against her. In a much-publicized case, the singer had been trying to get a preliminary injunction to allow her to stop recording with her producer, Lukasz Gottwald (better known as Dr. Luke). Kesha has said her producer abused her physically, sexually, verbally and mentally from a young age, allegations which Dr. Luke denies and claims are an attempt at extortion.
The ruling sparked an outcry from Kesha’s fanbase as well as support from celebrities like Taylor Swift, Lady Gaga and Ariana Grande. Amid the frenzy of lawsuits, countersuits, hashtags and Hollywood, we’re ignoring the deeper meaning of Kesha’s case.
In a case that boils down to he-said, she-said, as Kesha’s does, even strong advocates of feminism have to leave room for a sliver of doubt.
What is troubling is who consistently gets the benefit of that doubt.
A Big Ask
“You’re asking the court to decimate a contract that was heavily negotiated and typical for the industry,” said Supreme Court Justice Shirley Kornreich to Kesha’s attorneys. Which is indeed true. However, if you flip the sentiment and examine its alternative, Dr. Luke’s attorneys are asking the court to discredit an allegation of deeply painful abuse, on multiple levels, in favor of a business contract.
The record label, Sony, did offer Kesha the opportunity to continue recording under a different producer. Kesha’s attorneys argued that without the presence of Dr. Luke, Sony would not market Kesha’s music as heavily, which is vital in the short-lived life of a pop star. The judge, however, did not find this sufficiently believable.
In a perfect world, a simple switch of producers would be the optimal solution. However, in the modern work environment, which has been known to demote or dismiss women for offences like being “too aggressive“, “too attractive” or for having the audacity to have a child, it isn’t hard to justify a fear of being indirectly punished for villainizing a highly profitable producer – a job which has a much longer lifespan, and therefore more potential for profit, than a singer’s.
A Woman’s Worth
The Hollywood Reporter stated:
Kornreich heard arguments that Dr. Luke had invested a substantial amount — $60 million in her career — and that the producer had agreed to allow her to record without his involvement. The judge told Geragos that “decimates your argument,” adding, “My instinct is to do the commercially reasonable thing.”
The judge’s instinct to prioritize commercial losses over perceived slight may make financial sense, but stands on shaky moral ground.
From a financial standpoint, there is little to be gained by granting this injunction. From a human standpoint, there is little to be gained by denying it.
Ruling in favor of Kesha, Dr. Luke could gradually recoup his financial losses, innocent or no. Kesha, on the other hand, could not so easily recover a sense of well-being, a full recovery or arguably, a career, if he were guilty.
Burden of Proof
“What disturbs me is a lack of facts,” stated the judge. As it should. But once again, we should ask the question – a lack of facts supporting which argument?
As it stands now, sexual assault cases must prove that there was indeed inappropriate activity, rather than the opposite. Yet sexual encounters are, by nature, intensely private affairs. With the added factors of shame, abuse, skewed power dynamics, deliberate attempts to conceal, and fear, coerced encounters are even more shrouded in doubt and denial on both sides.
That isn’t to say there is no merit in due process. But what it suggests is that perhaps instead of focusing on proving something did happen, we should be working equally to prove something didn’t.
Dispassiontely viewed, there is no way to know who is telling the truth without hard evidence. In cases like these, someone is going to lose without irrefutible evidence that they deserved to. That isn’t in question. What we should question is why in the overwhelming number of cases, the loser is the victim.
When the judge ruled against Kesha, she ruled for a system that continues to doubt victims of violence over their alleged abusers. That, on it’s own, is injustice enough.
Cover photo credit: Peter Neill / Wikimedia Commons