How We're Failing Kesha
The court’s rejection of Kesha’s injunction against Dr. Luke is a cold reminder that sexism in the music industry is deeply institutionalized.
Photo by Getty
When we say “music industry sexism” it sounds contained and singular. But “music industry sexism” is just sexism, period, and the court’s rejection of Kesha’s injunction against Dr. Luke on Friday is a cold reminder that sexism is as deeply institutionalized as it is prevalent in the lyrics of male performers. It reminds us that we’re partaking in a culture of complicity, in which, by inaction, we all become perpetrators of sexism by facilitating it. The court siding with Sony and Dr. Luke, the industry’s continuing support of the latter, and our ongoing consumption of their product, all add up to a passive acceptance of abuse as the status quo. Kesha’s plight, sadly, has become a symbol for our collective failing.
To catch you up briefly: the controversial ruling came after a protracted series of complaints and counter-complaints that began with Kesha filing a civil lawsuit against Sony and Dr. Luke in 2014, claiming that the prolific and powerful producer had sexually assaulted her multiple times during their ten year professional relationship. Kesha’s career has essentially been stalled since she filed the initial lawsuit (she’s released no new music), while Dr. Luke continues to work. Friday’s decision, handed down by Manhattan Supreme Court Justice Shirley Kornreich, denied Kesha’s request for a temporary injunction which would have essentially severed her contractual ties to Sony (under which she owes six more albums) and allowed her to work on music with someone other than her alleged rapist and the company protecting him while court proceedings continued—which, at least ethically, doesn’t seem like a lot to ask.
Unfortunately, ethics and the law don’t always intersect the way they should, and Kornreich’s judicial comments reflect the ways in which the legal system often fails victims of alleged abuse. For instance, Kornreich said that allowing Kesha to temporarily be relieved of her contractual duties to Sony would cause the company “irreparable harm,” but gave no comment on the irreparable harm Kesha might endure by being forced to abide by a contract that forces her to work with the man who allegedly raped her. Kornreich also noted that approving the injunction would “undermine the state’s laws governing contracts,” and again, made no comment on undermining the state’s laws governing the protection of victims of abuse.
In her injunction request Kesha made an emotional plea for her safety. “I know I cannot work with Dr. Luke. I physically cannot. I don’t feel safe in any way,” she said. Kornreich refuted this, giving the legalities of commerce a higher priority than Kesha’s physical and emotional safety. "You're asking the court to decimate a contract that was heavily negotiated and typical for the industry," she said in her judgement, seemingly blind to any consideration for the well being of an alleged victim of sexual abuse. Kornreich thought it pertinent to instinctively "do the commercially reasonable thing," and in light of Sony having invested $60 million into Kesha’s career, was to tie a woman to the man who may have sexually assaulted her on multiple occasions.
HAPPY HOLLERDAYZ from Y E A S T I N F E C T I O N!!! I love all of my ANIMALS!!! Thanks for all of the support this year!!!....Don't worry NO ONE will ever shut me up.Posted by Kesha on Friday, December 25, 2015
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.
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. RAINN’s (Rape, Abuse & Incest National Network) research estimates that 68 percent of sexually based offenses go unreported, and that of the 32 percent that are reported, less than a third will lead to an arrest, with even fewer resulting a conviction. Those aren’t inviting numbers, but this isn’t striking or new information. Women live in a society that breeds into them an inherent knowledge of the futility of reporting. Whether it’s sexual harassment in the street by catcalling or physical sexual abuse, the systemic discouragement of reporting, whether by officials not taking reports seriously or via consistent victim shaming in the processes of the justice system, is enough to put any woman off undertaking the daunting task of seeking punishment against someone who has abused her.
So many crimes of a sexual nature are “invisible” crimes. Kesha claims Dr. Luke drugged and raped her, and we can’t see the scars, so we discount her accusations. But that doesn’t mean that they’re not real, or that she shouldn’t be openly welcomed into a safe environment and encouraged to prove their existence. So while Dr. Luke has yet to be charged or found guilty of a crime against Kesha, the way the legal system treats him—the powerful, white male accused—versus her—the unreliable, unruly female victim—is profound. The letter of the law has prevailed in such a way that requires Kesha to continue working with her alleged abuser without reprieve, and has yet to place any burden on Dr. Luke or Sony regarding Kesha’s wellbeing. The power imbalance enforced by the court here is nauseating at best. The path for a victim to report abuse should not be so riddled with further abuses that it renders the system’s ability to protect women from sexual crimes completely void.
Sony has, of course, said Kesha can work with other producers, but the veracity of that promise is tenuous. Dr. Luke remains one of the most powerful producers in the world, and the problem with Sony’s merciful olive branch to Kesha is that working without him under Sony might cause the record label to take the promotion and resources put into her future albums less seriously. Mark Geragos, Kesha’s attorney, argued this exact point, saying that Sony would “pick him over her,” setting Kesha up to fail. Indeed, Sony’s investment in protecting Dr. Luke through these legal troubles shows where the label’s loyalty lies, and that their main priority rests with the male producer, rather than protecting or even valuing the accusations of their female performer. A Sony lawyer allegedly said, “Our interest is in her success. Our interest is in Dr. Luke’s success. They are not in the least bit mutually exclusive,” suggesting that Kesha should fall into line, taking away her autonomy to decide what’s best for her and ignoring the impact of allegations entirely. In this light, there’s something about Sony’s legal dogging of Kesha that seems taunting and spiteful, designed to squash the spirit and career of a woman who deigned to refuse to be complicit in her own abuse.
Jezebel’s Madeline Davis sees this as sadly predictable from both the music industry and the court’s protection of its interests. “When a contractual violation and a human violation are put head-to-head in court, an idealist would think that a human being’s safety takes precedence. A realist, however, would know better. The music industry, like many industries, is predisposed to favor its own safety: what’s “commercially reasonable” for Sony can frequently be at odds—in more cases than just Kesha’s—to the well-being of the women it signs,” she writes. Reduced to these roles, Sony, the corporation, an entity given personhood by the law, seems to have been graced with more humanity than Kesha, an actual human, who, disgustingly, is being treated like a chattel, and ownership of her bestowed upon Sony with impunity. Instead of protecting Kesha in the face of horrific allegations of sexual abuse, her sentence is parcelled out to her as those who control her interests work in overtime to break her down to a list of quantifiable sums, contract clauses, and album sales.
In Kesha’s case, and so many others, it’s also important to consider exactly who we’re siding with in these cases. In 2015 I wrote that the way Sony has treated Kesha in the fallout of her accusations against Dr. Luke is tantamount to slut shaming, and the court has done little to dispel that attitude. A week ago, for instance, the entire world seemed to come to a standstill when Kanye West rapped a misogynistic lyric about Taylor Swift on his new album The Life of Pablo, and yet Kesha continues to suffer. I’m by no means saying that Taylor Swift is any less entitled to protection from sexism as any other woman, but when we rally for Taylor, the “good girl” and demonize Kesha, the “slut” or “party girl,” it reinforces a culture of victim blaming. Meanwhile, when Kanye West is attacked for his misogynist lyrics (which again, he shouldn’t have immunity from just because of the discrepancy in the way we place blame), and Dr. Luke is all but exonerated, we also reinforce traditional white male power structures. What if we replaced Kesha with Swift in this case, and Luke with West? Would the results be different? It’s a question we can’t answer definitively, but there’s an instinctive perception, based on feminine personas and racial bias, that things might be different if we cast other characters.
Kesha’s case is a cipher for a patriarchy that is often dismissed as existing. Everything about the case, from her initial complaints and Sony/Dr. Luke’s counter complaints, to the latest ruling against her injunction, is coded in the language of sexism. The message has never been clearer: for victims of abuse, there’s no recourse to justice, especially when you’re going up against a global corporation and the cool white guy they stake their earnings on. Cash Rules Everything Around Men. Last year I wrote that Dr. Luke may or may not be guilty of what Kesha accused him of, but that that’s not the point—the point being that “the onerous nature of the competing lawsuits is such that Kesha has fallen into purgatory, while Dr. Luke, miraculously, continues to thrive in his profession.”
And here’s where the rest of us, as a collective culture, need to begin to take responsibility. Whether we’re artists continuing to work with Dr. Luke and Sony, reporters hungrily covering that work, consumers eagerly listening to the latest Dr. Luke banger—we become part of the passive, en masse complicity that allows things like this to continue to happen. Sure, Dr. Luke is influential, and it bodes well for artists wanting a hit to work with him and for websites clickbaiting to write about him, but that’s only so because artists continue to work with him and journalists continue to write about him—it’s a self-fulfilling prophesy. Meanwhile, estimates have suggested that only around five percent of music production is undertaken by women, so maybe there are more fertile fields that we should be tilling, rather than continuing to invest in what we already know to be toxic soil. This goes not just for Dr. Luke, but for the music industry at large. For instance, we engaged with the same complicity when we watched Chris Brown, who hadn’t even completed his sentence for beating Rihanna, perform at the GRAMMYs. Likewise, when the music industry turned a blind eye to the sexual crimes of music publicist Heathcliff Berru for so long, it essentially partook in those crimes—Berru being the proxy through which they were physically acted. When we do nothing, when we continue in our vehement or idle support of men who abuse their power to hurt women, we become aiders and abettors. Dr. Luke and Sony and Manhattan Supreme Court have castrated Kesha against her will, and we’re driving the getaway car that mandates their doing so. In a perfect world, people in the music industry would stop working with Dr. Luke, and we’d stop listening to his music, not to suggest that he’s guilty, but to enforce the importance of protecting alleged victims.
There’s a photo circulating of Kesha crying in the back of the courtroom as the decision is handed down, and it should be enough to bring you to tears too (I certainly shed a few). It’s not the face of a woman looking to escape an inconvenient contract and being told “no.” It’s not the face of an opportunist or an actress. It’s a face we’ve all seen before, in the pained expressions of our friends and loved ones, and maybe even some of us in the mirror. It’s the face of ultimate defeat. Her expression captures that exact feeling of being powerless within a culture that is structured in such a way that simply being a woman makes you vulnerable in ways you never even knew you could be vulnerable. Kesha’s tears are the tears we cry when we’re so hurt and broken that we find the courage to whimper a complaint, and that complaint is received, laughed at, pissed on, and killed. Maybe I’m getting too emotional with it, or maybe we need to be more emotional about it as a community. Maybe we need to rally and cry and twist our faces into masks that show the ways in which we’ve been abused too, in order to stand with Kesha, and stand together to start making some tangible changes. Because until we do, until we can let all those tears wash together in a tidal wave that drowns out our silence with noise, we’ve failed. We’ve let Kesha, and every other woman or person who has spoken out against sexual harassment and been punished for it, down. We are the court, we are Sony, we are Dr. Luke. We are complicit.
Kat George is a writer based in Brooklyn. Follow her on Twitter.