How We Failed to Protect Kesha

By Madeleine Davies | February 19, 2016 | 10:00pm

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What is the worth of a woman? What is the worth of her body, her safety, her heart, her career? And once you determine it, how does it hold up to the worth of a man, a business, a conglomeration? Or does it not hold up at all?

On February 19, a New York Supreme Court judge ruled that the musician Kesha must remain contractually bound to Sony and Kemosabe, the record label created and run by Dr. Luke (real name Lukasz Sebastian Gottwald), the producer who she claims drugged and raped her when she was 18 and continued to abuse her throughout their creative partnership.

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Judge Shirley Kornreich heard Kesha’s request for an injunction that would allow her to record outside Dr. Luke’s reach as a request not for physical, psychological and sexual safety but a request to “decimate a contract that was heavily negotiated and typical for the industry,” as Kornreich put it.

Kesha’s injunction request read, in part, “I know I cannot work with Dr. Luke. I physically cannot. I don’t feel safe in any way.” But that plain statement of absolute need doesn’t matter. Legally, in the moral eyes of the court, it’s the contract—the corporation—that comes first.

This is appalling, but it’s no break from tradition. The U.S. Supreme Court has already determined that corporations have similar rights to people, though if you look closely, you’ll find that theirs are far more enviable—especially compared to those of us who’ve been legally cursed with female bodies and female voices, which are meant to be soft and agreeable. Money speaks louder than you or I ever could in a courtroom, even if we were pop stars whose fans waited outside for hours to support us; corporate interests are louder than ethics and empathy, louder than autonomy, or self-determination, or basic rights to safety.

Kesha, a 28-year-old woman who’s been working in the music industry for a full decade, might think she knows what’s best for her. She might think it’s in her best interest to sever all ties with the man who allegedly raped and continually hurt her, but—really—what does she know? Sony’s invested $60 million in her career, their attorneys reminded the judge—what’s an emotional and physical violation compared to that?

“Our interest is in her success,” claimed a Sony lawyer. “Our interest is in Dr. Luke’s success. They are not in the least bit mutually exclusive.” In other words, we know what’s good for her. And what’s good for her is recording six more albums with a company that heard her claims of abuse and said, “Your story means nothing.”

That Sony would take this line of argument is gross enough, but far grosser is the fact that the court agrees.

“My instinct is to do the commercially reasonable thing,” ruled Shirley Kornreich as Kesha sobbed openly in the back of the room.

Commercially reasonable, yes. Contracts were signed. Kesha entered into a legal agreement with Sony and Kemosabe. But then again, Dr. Luke has a legal obligation to not rape or hurt anyone, even when it’s a young woman who’s been put under his creative and legal control.

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.

Part of Judge Kornreich’s reasoning, in denying the injunction, was that Sony has agreed to keep Kesha’s work separate from Dr. Luke’s. But she’s still signed to his label, and her work still belongs to him. She remains the creative property of the man she says raped her. The ruling is so cruel as to seem almost mythological—Persephone stuck in hell as the result of a bad contract—but it’s not; the ruling is real.

It’s likely that “commercially reasonable” will almost always beat or “ethically reasonable” and is certain to beat “morally reasonable.” Our courts and culture have a hard enough time believing women’s accusations of sexual assault in the most clear-cut of circumstances, so what chance do we have at legal, emotional, and physical protection when details are contested and a corporation stands to lose millions? When a woman as powerful and high status as Kesha can’t win, the rest of us stand even less of a chance.

Remember: They know what’s best for us.

This piece has been updated to correct that the ruling occurred in the New York Supreme Court, not the U.S. Supreme Court.

Contact the author at [email protected].

Image via Getty.