the court of public opinion
the court of law
"This issue is bigger than just about me," singer Kesha wrote in an extended statement on Facebook. She was responding to fans and peers who, over the last week, have tweeted, rallied, boycotted and protested that the "Tik Tok" star be "freed" from her Sony contract after alleging that her producer, Dr. Luke (aka Lukasz Gottwald), assaulted her both physically and verbally. "This case has never been about renegotiation of my record contract," she continued. "It was never about getting a bigger, or a better deal. This is about being free from my abuser. I would be willing to work with Sony if they do the right thing and break all ties that bind me to my abuser."
Her words have resonated with a wide swath of the global community for various reasons. This is a young woman who was allegedly raped. This is a young woman who found the courage to speak up. This is a woman who, despite potentially losing it all, decided to stick it to the literal and figurative "man." She has become a tragic heroine of sorts in a story that is universal. Millions have applauded her for doing something - sticking up for herself - that they may have been unable to do in their own lives.
On the surface, Kesha’s request to be released from Dr. Luke's label, Kemosabe, seemed fair, especially in so much as Sony should be concerned. Free the pop star from the man in control of her career - who she says drugged and raped her - and she’ll continue selling records for the company in a safe space. But as Bloomberg pointed out, in the court of law, Sony has no real say in Kesha’s career, Gottwald does. From Bloomberg: “On Jan. 27, 2009, Kasz Money negotiated an agreement with RCA/Jive, a label group of Sony, to furnish Sebert’s recording artist services to Sony,” according to court filings. With Gottwald in the middle, Sebert and Sony Music weren't negotiating directly, meaning that the company couldn't drop Sebert if it wanted to." Something Sony stated bluntly in a just-released statement.
Still, fans and allies of the singer have focused in on the behemoth label, and Shirley Kornreich, the Supreme Court judge who refused Kesha a preliminary injunction late last week in New York . Both, lawyers argue, are wrong targets.
Deborah Wagnon, attorney and associate professor in recording industry legal issues at Middle Tennessee State University, pointed out prior to Kesha’s injunction, "I would suggest that the issue of rape is not at the core of what this judge is having to decide...she's being handed a contract that was negotiated with two parties, and there’s no place in it for [Kornreich] to be the judge and jury of ‘was this woman raped?’” In last week's case, Justice Kornreich was tasked with deciding whether Kesha's current contract with Dr. Luke could be dissolved until her rape case began, allowing the singer to continue her contractual obligations to Sony, but record music with a label other than Gottwald's Kemosabe Records. Kornreich ultimately decided that dissolving the well - "negotiated" contract would "undercut our whole commercial system." If she granted the injunction, others would come forth expecting a dissolution of their contracts too.
This case was about Kesha the product, not Kesha Rose Sebert the human.
The resulting #FreeKesha movement well illustrates the disconnect between the court of public opinion and the court of law. Kesha's fans, and those who are sympathetic to some aspect of her experience, want to protect the latter Kesha. The court of law aims to protect the agreements made between two entities, especially when there is millions of dollars at stake. And so, as she stated, Korneich's job is to “do the commercially reasonable thing.” That is the law of the courtroom.
To the outraged, this ruling was another example of how our laws and our culture ultimately silences rape victims. That Kesha's accusations of rape did not factor into the considerations made by Justice Kornreich was, for many, unfathomable. It's exactly why, some would suggest, so few women come forth so publicly with their experiences of assault: What's the use? Kesha would now be forced to record more albums with Dr. Luke's label, and whether he was present or not, he could potentially continue to assert control over the singer, just as Daniel Holtzclaw wielded power over the 13 different low-income African American women he raped by brandishing his badge.
Gottwald's unhinged Twitter rant earlier this week added to people's frustrations around rape culture. This was a man telling the public that his accuser was attempting to extort him for money, and that Kesha was surreptitiously attempting to release herself from an old contract. "There is a public narrative that generally assumes that false reporting for sexual assault cases are the norm," said Chrissy Hart on our Facebook page. "When in reality, they’re only 2-8%, which is on par with grand theft auto...That same narrative reinforces the very real stereotype that women are untrustworthy.” Why even risk it?
While much of the public, and handfuls of pop stars - mostly female stars, because very few celeb men have made statements...read into that as you wish - have taken Kesha's side on the alleged rape accusations, a recently released deposition video does call her truths into question. In it, Kesha claims that Dr. Luke never "roofied" her and that she never had sexual relations with him. According to a report, flip-flops are not uncommon among victims as they process their experience and society's reaction to them.
“It's already hard enough to get victims in sexual abuse cases to speak out, and saying that Kesha is lying (whether that's the case or not) will only make other victims that much more afraid to speak up for fear of being stigmatized," Andrea Uku, a millennial in the fashion industry, told me.
Regardless, the public has its mind made up: Kesha deserves support now, because this story is bigger than just Kesha: It's a human one. As Hart summed up, "[Kesha's case] drives home exactly how much work there is to do, legally and systemically, beyond culture and social inequality."
We asked a group of lawyers, Kesha supporters and readers to explain the disconnect between the court of law vs the court of public opinion. Here's what they had to say:
"We aren't all signed to contracts with Sony, but every woman has to deal with the reality that sexual abuse is something that could happen to them. And for that reason, Kesha's reality could very much be any of our realities."-Andrea Uku
"Imagine being raped by someone and seeing him in the cafeteria at work or being on the elevator with him or in the parking lot with him - sound fun? Hell no!" - Danielle Hendrix
"I'm sympathetic to Kesha's claims, but her lawyers simply didn't persuade the judge of the irreparable harm element necessary to get the injunctive relief. She has not lost her case, at least not yet." - Mikey Carrington
"The music industry treats women as commodities, not as people." - Alexandra White
"Throughout this process, [rape allegations] have been discussed as if guilt has already been established in a court of law, when as of today, the only place guilt has been established is in the court of public opinion." -Joseph Pinion
"To feel unsafe is something that is not as simple as "we'll just make sure you're not around him anymore." When you've been victimized, and you are trying to reclaim your sense of safety and power, you need to determine what is necessary to re-empower yourself." - Allyson Burley Gunn
PostedFeb 25, 2016
BySwagger NYC Staff