Court cases often make the news, it’s true. They excite polarised opinions, it’s true. But they tend to be criminal cases at the very least. It isn’t often that the outcome of an application for an interim injunction in a civil contract case can cause someone to want to vomit with disgust. But this isn’t an ordinary case, and we’re told that ‘every feminist should care’ about its outcome. I agree, but not for the reasons given in Jennifer Lynn’s piece.
In case you haven’t caught up with the case, it concerns the pop singer Kesha, and her wish to be allowed to make music with other people, despite having signed an exclusive contract to work with her current producer, Dr Luke, whose company Kemosabe is owned by Sony, and to produce a further six albums. So far, so diddums you might think. The reasons we have contracts is so that people can rely on agreements made with other people, you might think. If she has an exclusive contract with Dr Luke and she wants out of it, she’ll have to pay him damages if she can afford it. That is the commercial way. Maybe she shouldn’t have signed in the first place, you might think. She was a grown-up wasn’t she?
Except that Kesha’s given reason for wishing to be professionally divorced from the man who created all her hits so far is that she says that from the very beginning, in 2005, he has been drugging, raping and sexually abusing her, and that under the circumstances, she cannot be expected to work with him any longer. Dr Luke (not a doctor), for his part, responds that all her allegations are false, and that she has made them simply in order to escape a contract that she fears is not valuing her as it should (she entered into it at the very start of her career, before she had any commercial success). He is counter-suing her for defamation, as well he might. Not doing so would effectively be an admission of guilt. The recent hearing was a pre-cursor to the case proper concerning the contract, but led to the Judge, Shirley Kornreich, dismissing the application for her to be allowed to make music with other people in the interim. She now apparently has the option of completing the other albums with the man she says is her rapist, or dropping out of the music business.
The hashtag #freekesha is trending, and celebrities from Taylor Swift and Adele to Anne Hathaway (if that’s very far) have predictably weighed in on the singer’s side. A well-meaning campaign has begun to raise the money (put, for unclear reasons, at two million dollars) it is believed to be necessary to ‘buy Kesha’s contract from Sony’. It hasn’t got very far. Last time I looked it was raising £100 a day, which means that the diva will be in her eighties before she is ‘freed’. There also remains the question of whether Sony will be prepared to sell, which doesn’t seem to have occurred to anyone. For their part, Sony say that Kesha is signed to Dr Luke, not to them (which might make the campaign doubly misguided). They are happy for her to record with other people, but she fears that they won’t put much effort into promoting any songs she produces. (It’s hard to dig to the details, but if she is recording outside their umbrella, it’s hard to see why they should put in any effort at all, so I would imagine that those fears are justified.)
Venture onto any comment forum on the question, post a tweet with #freekesha without completely believing and sympathising with the woman, and you will be accused of being a ‘fucking rape sympathiser’ and, I assume, worse. These are discussions generating only heat, not light, and they all hinge on a single issue – the presumption of innocence. Almost all of those commenting in her support are tacitly or explicitly assuming that what she says is true. More worryingly, there is a declared belief among some that any woman who claims sexual abuse should always be presumed to be telling the truth. This is either touchingly naïve or strategically evil. Men have for centuries escaped rape charges because the evidence against them was insufficient, they seem to say, it is time that a few innocents went to jail instead, just so long as women are always believed.
There is not yet, so far as I am aware, a criminal case against Dr Luke. Big deal, say Kesha’s supporters, most rapes don’t get reported or prosecuted; doesn’t mean they didn’t happen. Too right. But one reason they don’t come to court is that there isn’t enough evidence to secure a conviction. This is genuinely terrible as it is in all situations where crimes are committed and their perpetrators walk free for want of evidence. But sexual crimes, by their very nature, frequently rely on an accumulation of circumstantial evidence, and some are indeed successfully prosecuted. Successful prosecution in a criminal case means convincing (‘so that they are sure’) a unanimous or at worst 10-2 majority jury that what is alleged actually happened.
In civil cases, like Kesha’s, the burden is much lower. All she needs to do is make the Judge believe that it is more likely that it happened than that it didn’t. Even in this, she has thus far failed. (Technical note: it’s true that in an interim measure, judges tend not to try to pre-decide the ultimate case – maybe the judge will find differently once the case itself actually comes to court).
So those rending their garments and vomiting inside their Ubers about this case are doing so simply because a woman claims that something vile has happened to her and some people are not believing her, for the footling reason that there is a better than even chance that her claims might not be true. All of the pro-Kesha commentary starts from the view that she is honest, which of course pre-empts the whole case. Here’s Lena Durham:
[T] he judge, Shirley Kornreich… questioned why — if they could be physically separated as Sony has promised — Kesha could not continue to work for Gottwald. After all, she said, it’s not appropriate to “decimate a contract that was heavily negotiated.” Guess what else is heavily negotiated? The human contract that says we will not hurt one another physically and emotionally. In fact, it’s so obvious that we usually don’t add it to our corporate documents.
She’s right about that last bit. In English contract law, we have the idea of the Officious Bystander, an imaginary being who is supposed to have been standing next to the parties as they drew up their contract, and nudged their elbows to encourage them to put in all kinds of extra clauses that most people would imagine are utterly unnecessarily to mention. ‘And put in clause that you won’t rape her’ she would have been saying ‘and another one that you won’t pretend that he raped you just so you get out of it’. I presume that (despite Durham’s sarcasm) US law would also imply such terms into the contract. If Kesha can show evidence, on only the balance of probability, the contract can be struck down in her favour. But it’s not about evidence for Durham.
What’s happening to Kesha highlights the way that the American legal system continues to hurt women by failing to protect them from the men they identify as their abusers. [my italics]
Do you see the barbarism in that little phrase? If not, I’ll put it boldly. Women do not deserve to be protected from the ‘men they identify as their abusers,’ any more than Goody Proctor deserved to be executed for sleeping with the devil. They deserve to be protected from their actual abusers.
I put this thought experiment to an interlocutor on one forum:
Let’s say you have a boyfriend whom you love and trust very much. A woman whom you don’t know tells you that he raped her in the past. Do you immediately drop him and report him to the Police? Or do you try to satisfy yourself that she is telling the truth?
At the very least, we would be spending some time apart and we have a kid. In the end maybe it didn’t happen and I would hear him out but there are some things that you just don’t take lightly and you just do not brush off.
There you see the flipped burden of proof that splenetic Kesha-supporters require. A man who is accused of rape or sexual abuse must be presumed to be guilty without evidence, and must prove his innocence. This woman was prepared to separate herself and her child from her beloved husband on the untested assertion of a stranger. I very much hope she was only saying it to make a rhetorical point, but I do fear that her sentiments are widespread.
Suppose, just for a moment, that it is revealed that Kesha was indeed lying. The 2011 video deposition in which she repeatedly denies all of the allegations she now makes may be some kind of denial or burying of deep psychological hurt,  but it could also be – well – evidence that she’s now lying. If that were to be the outcome, if Kesha were shown somehow to be crying wolf, I very much hope that the fawning guilt-presuming feminist support would turn to equivalent fury at her use of bogus accusations of rape as a commercial tool.
For this is why every feminist should care. It is because once principles of justice have gone, once we stop expecting people to show that their accusations are true before they are acted upon, once people decide matters for good on their whims, siding with their favourite pop singer or fellow celebrity on the presumption that they couldn’t lie, every single one of us is a potential victim of the pointed finger, and none of us, man or woman, will be safe.
 Well, yes, but only just. Only just, however, is good enough for the law, just as ‘not quite’ isn’t.
 Though to this unqualified, privileged white cisgender male, it didn’t particularly look like it – notice how she waggles her head as if it’s something crazy that she’s heard other people say, how her mum answers all the questions with a deadpan no, as if she just wants to get on