We Need to Talk About: Kesha

In Commentary, HOME, MUSIC by Amanda Gordon

In the coming weeks, this article will be followed by #discuss, a new PTL feature in which our Editors and Contributors will discuss both the article and the contentious subject it concerns. The idea being to explore and give voice to further views on the matter and to highlight the diversity of opinion that exists among the writers of PTL.

As I write this title I feel wary.

Such is the nature of Kesha’s situation both legally and personally that it seems that those who comment on it are either being labeled for or against Kesha, and, within that, for or against rape. Whilst it’s great to see that so many people believe Kesha – this shouldn’t come as a shock, but, when more than 50 women have accused Bill Cosby of sexual assault and many still believe him innocent, it sadly is – it seems that some of the nuance and specifics of Kesha’s case are being lost in the mix of media outcry.

Is this case as simple as Dr. Luke is guilty, Kesha is innocent – or is there more to it?

Before I begin, there are a few things I wish to clarify:

I am not questioning the validity of Kesha’s claims, nor do I ever think it’s appropriate to blame victims of such crimes. As a woman – and equally as, well, a human – I have the utmost sympathy for Kesha’s situation. I can’t imagine the personal strength and courage it must take to speak out about these issues, and I would not wish these circumstances on anyone. To see her continue to advocate, not just for victims of sexual assault but other causes, such as LGBT+ rights is both commendable and inspiring.

It’s also important to say that, the #freekesha movement and many of its speakers have done much to highlight the shortcomings of the law in dealing with sexual assault. Seeing high profile figures speak out against these is wonderful. The public support Kesha is receiving now, will hopefully inspire victims of sexual assault to speak out about their experiences and give them a voice. Regardless of the outcome of this legal battle, I hope we can use these examples as building blocks for future change. Nevertheless, in spite of all this well-informed discussion surrounding Kesha’s case, it also seems that many are speaking out on the matter without any real knowledge of either its nuances or the law in general. Many of the things I have read on social media on the topic lately have been confusing, conflicting and sometimes downright untrue. With that in mind, I think it’s important to properly consider the legalities of Kesha’s case.

So here goes: on February 22nd, a judge in Manhattan denied a request from Kesha to temporarily set aside her contract with Kemosabe records (a sub-company of Sony) while her lawsuit against its founder, Lukasz Gottwald (Dr.. Luke) is pending. Essentially what the judge said was that nothing could be done to set aside the contract right now, while there are still two ongoing civil suits by the parties to the contract.

I apologise if this seems contrived but with so many high profile individuals taking to hashtags, I feel some legal clarification is needed here. For those that might want a quick summary of the ins and outs of the law:

Criminal law is administered by the state. This is done by the police, who charge someone after gathering evidence, and then – in the US – a district attorney will prosecute the case in court. If the crime can be proven beyond all reasonable doubt, then the person will be deemed guilty and be punished accordingly. Civil law on the other hand, is what people can enforce against each other. It’s the civil branch of the law that Donald Trump so regularly threatens to invoke when he brings out the old mantra: ‘I’ll sue you’. The civil law has nothing to do with guilt or innocence; often it concerns is monetary damages. Crucially, the standard of proof in civil law cases is ‘the balance of probabilities’. If you want to prove something in a civil setting, you only have to get the judge to believe it more than they don’t believe it. Contrast this with the fact that for criminal charges the judge or jury (which it will be depends on a lot of things, but doesn’t really affect our discussion) have to be convinced beyond reasonable doubt.

Which brings us to Kesha.

In 2014, Kesha filed a civil suit against her producer Dr. Luke alleging that he drugged, emotionally and sexually abused her during their working relationship. The suit was concerned with dissolving the recording contract between Kesha and Kemosabe records, on the grounds of alleged abuse. Dr. Luke then filed a counter suit, denying all accusations, and claiming defamation by Kesha. Even if Kesha’s 2014 suit turns out successfully, this doesn’t mean that Dr. Luke’s been found guilty of a crime. However, neither of these two lawsuits have been resolved yet, they are still ongoing. With these ongoing, Kesha’s legal team asked the Manhattan judge to set aside the contract in order to allow her to record music elsewhere. The judge refused, stating that an allegation of a crime isn’t grounds to allow the dissolving of a contract.

And therein lies my problem: during the media debate that’s ensued, many people have claimed that an allegation of a crime is grounds for the dissolving of a contract. For just a few examples, see here and here. I can understand, why people would advocate for this to be the case, however, as the law stands, this is not currently any part of contract law, and I personally don’t believe it should be. While that may initially sound unsavoury, absolutely no criminal charges have been brought against Dr. Luke. The man has not been found guilty of anything, at all (yet?). Asking a judge to waive a legally binding contract because one of the parties is alleging a crime against the other is not going to happen under current circumstances, and I don’t believe it should. To allow anything else would be to essentially render the system of contracts useless.

Now, do I think that Kemosabe Records (Sony have recently claimed that, as the contract is under Dr. Luke’s label, it is only within Kemosabe Record’s power to terminate the contract) should drop the contract on business and PR grounds? Absolutely. Should Kemosabe Records, perhaps more importantly, do so on personal grounds to end the clearly traumatic ordeal for all involved? Of course. Adhering to it seems strange at best. Perhaps they believe that in doing so, it will seem as though they are, and as a result, Dr. Luke is – admitting the sexual assault that he has previously denied. Interestingly Sony are apparently now terminating their own contract with Dr. Luke, perhaps for these very reasons.

On a personal level I think Dr. Luke probably did do a lot of what is accused against him. I have no reason to think that Kesha would lie about this, and I do not like to make a habit of calling potential sexual assault victims liars. But that is exactly the point – it isn’t up to me, or you, or anyone else in the court of public opinion. And the fact that I do probably believe her is irrelevant, because, as unsavoury as Dr. Luke is, he is still entitled to the same presumption of innocence as anyone else, the same presumption I would definitely want were I ever accused of a crime. I have seen a counter argument yelled from the rafters of the twittersphere: that he is not entitled to this presumption, simply because of the nature of the alleged crime. An example of such rebuttals of the presumption of innocence can be found: here. Artists are questioned on whether they will work with Dr. Luke based on his presumed guilt. Many of these artists have working relationships with Dr. Luke, and have declined to comment. Assuming that they would immediately speak out against him is odd. Many of them are perhaps, like myself, trying to work out where they stand with this man, based on their personal experiences with Dr. Luke and Kesha’s claims. Just as Kesha’s friends and fans are likely to believe her, surely Dr. Luke’s friends and fans are likely to believe him. As it stands, no mainstream celebrity has voiced their support for Dr. Luke yet, perhaps due to fear of backlash or presuming him guilty, but surely he is still entitled to be presumed innocent until proven otherwise?

I challenge this presumption of guilt. The nature of sexual assault undoubtedly means that it is trickier to prove in any legal sense, yes. However, I would suggest that to get round this problem, changes to the legal system need to be made, and wider changes in the way our culture treats potential victims. The answer is surely not to remove the presumption of innocence for certain accused people.

The fact that the criminal justice system doesn’t deal with sexual assault cases well is palpably true, and terrible. I absolutely agree that changes need to be made, to make it easier for victims to come forward to the police. Police culture needs to be improved to know how better to deal with victims trying to speak out. Changes need to be made to court processes, to prevent victims from having their sexual histories brought up on the witness stand, or having to be in court when their potential abuser is in the same room. Society as a whole needs to be better at receiving sexual abuse victims, and reducing the stigma around this to foster a culture where people aren’t scared to speak out and immediately go to the police about these terrible acts.

These discussions intersect, but I’m opening up the floor here because I feel that thus far a neglected aspect of the conversation on Kesha’s case, has been the one which asks for a contract to be waived on criminal allegations which have not yet been proven. I am not prepared to call Dr. Luke a rapist off of the back of the social media machine and neither should the individuals that comprise it. Don’t believe Kesha just because she says so, but also don’t believe Dr. Luke simply because he says ‘defamation’. Look further, read the Court transcripts for yourself, read the testimonies of those involved. These issues are bigger than he said, she said and a valuable conversation about society and sexual assault shouldn’t be lost in the discourse.

Amanda Gordon

Amanda is a law student in the dusty rooms of the University of Edinburgh, which despite what most of her peers would have you believe, is nothing like Suits. Her talents include being able to spend hours scrolling pictures of puppies on Instagram, and being able to demolish ungodly amounts of cheese products in single sittings. Instant friendship can be procured by voluntarily duet-ing Disney songs with her.

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