As a highly publicized rape case, Kesha’s ongoing legal battle is unique. The pop star claims that Dr. Luke—her former producer, and the man who discovered her and to whose label, Kemosabe, she remains signed—raped and abused her over the course of a decade, but she has not filed a criminal complaint against him. Instead, she is pursuing a civil lawsuit, seeking freedom from the contract that binds her professionally to Luke (real name Lukasz Gottwald) for four more albums. (Gottwald has denied all allegations.) The lawsuit is considered a landmark moment for the business, with Kesha’ attorney telling Billboard that it may be a “first-of-its-kind case.” Even so, at the heart of all this litigation is a unsettlingly familiar story of abuse, rape, and trauma. It’s vitally important that—even as this case is disseminated through the music, entertainment, and tabloid press—we have conversations about abuse with extreme care. In this way, Kesha’s case is not unique at all.
Owing, in part, to the distinction between criminal and civil law, the majority of discussion about Kesha’s case in the public eye has been framed around money (ironically, for the pop star who once had a $ in her name). The artist's attorney has built her case on the notion that, as time elapses with no new music from her in the charts, her “brand value” is falling. Gottwald’s attorney, meanwhile, argues: “the allegations against [Gottwald] are outright lies that have been advanced to extort a contract renegotiation and money.” On February 19, Kesha had a preliminary injunction denied. The injunction, which is notoriously difficult to obtain in any case, would have allowed her to record music with other labels pending the final decision of the trial, which will be scheduled in early 2017. (Sony Music, who own Kemosabe, claim that it is an option for Kesha to remain in her contract while recording without Gottwald physically present—but it seems that Gottwald would still profit from her music, and the level of creative control he would have is unclear.) The court’s decision against Kesha was based, in the judge’s words, on what is “commercially reasonable.”
As this story’s prominence in the media has exploded since this preliminary judgement, that judge, Justice Shirley Werner Kornreich, has been derided for the business-focused language she used in court. At one point, Korneich considered the effect of dissolving Kesha's contract by asking, "What would that do the industry?" This kind of rhetoric erases the victim, and turns the case into one all about capital—which, though skin-crawling, was Kornreich’s job in this case. The outcome being sought was not a criminal verdict, but a contractual decision. Outside of the courtroom, though, we have a choice in how we speak about this ongoing lawsuit—and the words we choose are critically important.
Some outlets have successfully detailed why this case is significant for the music business without sidelining Kesha’s experience. Bloomberg explained why Sony cannot easily release Kesha from her contract, because she is not signed directly to them but to a subsidiary label owned by Dr. Luke. One of the most detailed, non-sensationalist briefs on the legal aspects and repercussions of this case for the music industry is this piece for Rolling Stone, which highlights the fact that, aside from its graphic and upsetting nature, this case is notable because no recording artist has ever successfully voided a contract on the basis of sexual abuse before. That seems like something worth pointing out, and something that needs to change.
However, there has been a lot of speculation, and spectacle, in the reporting of Kesha’s lawsuit. Over the last two weeks, we have seen how a person’s account of rape, when spilled out over the pages of the entertainment press, and/or clouded in the language of commercial contracts, has the brutality at its centre glossed over. Talk show host Wendy Williams called the ruling against Kesha “fair,” stating “business is business,” minimizing the trauma of the story and going as far as to suggest that Kesha was “stupid” to not film Gottwald as he raped her (which she reports he did while she was unconscious). In the online music publication Lefsetz Letter, journalist Bob Lefsetz prioritized the needs of the music business above Kesha’s story by writing: “This isn’t about rape, this is about contracts, this is about LAW! Leave the emotion out, focus on the system…Sony Music spent millions to make Kesha a star. And now she wants to turn her back on the company.”
These outright dismissals of a victim’s account of their abuse are at one extreme end of the spectrum; in between, there are more outlets who have simply been careless in their word choice. Stereogum posted on February 19 that Kesha had claimed that Dr. Luke “seduced” her, before later acknowledging the mistake and amending the article to read “Kesha sued Dr. Luke for sexual assault and emotional abuse.”
Throughout the case, outlets including Billboard, CNN, and New York Daily News have used the outdated term "date rape” to refer to the events described in Kesha’s lawsuit. 'Date rape' is a term for rape by an acquaintance that was coined in the 1970s, when society’s views on consent were broadly different to what they are now (note: rape of a spouse was not illegal in all 50 U.S. states until 1993). Archaic attitudes about the severity of different ‘kinds’ of rape are reignited when the phrase 'date rape' is used. Conviction rates for 'date rapes' are lower than for 'stranger rapes'—in fact, the criminal justice system often decides against prosecuting such cases—which makes the use of the term to describe Kesha’s story dangerous. The cultural effects of such careless reporting on Kesha’s case are plain to see: comment sections and timelines these past couple of weeks have been awash with rape apologists and anonymous readers brazenly debating whether or not the pop star is telling the truth about her assault.
In any highly visible case about abuse, there is a voiceless sea of people whose lives are impacted by its publicity, including anyone who has themselves been a victim of such abuse. These people are victimized all over again when they are exposed to language and attitudes that tell them their experience doesn’t matter.
Recognizing that many music and entertainment writers are untrained in how to correctly report on sexual assault, journalist Jes Skolnik recently published a list of essential tenets for reporting abuse on Medium, including “do not refer to [violence] using the same terminology as consensual sex.” (This was the error made by Stereogum, in writing “seduction” instead of “abuse.”) In 2012, journalists Claudia Garcia-Rojas and Sharmili Majmudar co-authored another useful resource, “Reporting on Rape and Sexual Violence,” which thoroughly outlines issues like the damaging effect it can have to use the word “alleged” thoughtlessly, to use victim-blaming language like “the victim admits,” and to misrepresent the details of a victim’s story in reports of rape. In a 2015 article for independent news organisation Truthout addressing the issue, Garcia-Rojas and Majmudar stressed why it is ethically vital to uphold these guidelines: “It is not merely a trend but a decades-old problem to see media blame survivors for the violence they endure or minimize their experiences of violence. This problem runs counter to the Society of Professional Journalists’ edict that reporters must ‘consider the long-term implications of the extended reach and permanence of publication.’”
The danger of marginalizing and undermining those who report rape in the media is not hypothetical. It is real. “Jurors' judgments in rape trials are influenced more by the attitudes, beliefs and biases about rape that jurors bring with them into the courtroom than by the objective facts presented,” write Garcia-Rojas and Majmudar. Kesha won’t have jurors in her case when it comes to trial next year; her lawsuit is civil and will be handled by a judge. But the reporting and general public reactions surrounding her case could very easily have a knock-on effect on other cases. Jurors sitting in rape trials now or in the future are sensitive to how we discuss sexual assault in the media—not to mention Kesha and other survivors themselves. Truthout report: “Studies show that negative reactions to rape victims, such as blaming or disbelieving, harm their recovery.”
The way in which we speak publicly about rape has immeasurable costs. In her essay “The Careless Language of Sexual Violence,” in the 2014 book Bad Feminist, essayist Roxane Gay discussed a 2011 New York Times article that reported the gang rape of an 11-year-old girl under the headline “Vicious Assault Shakes Texas Town.” As Gay points out, this headline sidelines the very real trauma of the victim in order to prioritise the “shaken” town. Gay argues that this article’s erasure of the victim’s experience is a facet of rape culture—that is, a culture that is permissive of rape because it views sexual violence (in particular toward women) as, in Gay’s words, “acceptable and often inevitable.” The media has a gargantuan role to play in the perpetuation of this culture. “[The victim’s] life will never be the same,” writes Gay. “The New York Times, however, would like you to worry about these boys, who will have to live with this for the rest of their lives, and the poor, poor town. That is not simply the careless language of sexual violence. It is the criminal language of sexual violence.”
“Unfortunately I don’t think that my case is giving people who have been abused confidence that they can speak out, and that’s a problem.”—Kesha
The needs of the “shaken town”—in this case, the music industry—should not be put before those of the victim. To publicly ‘take sides’ with Sony or Dr. Luke in the face of Kesha’s allegations is to contribute to a culture that marginalizes the suffering of victims of sexual assault. Of course, just like anyone else accused of a crime—even if he is not on trial as a criminal—Dr. Luke is entitled to be presumed innocent until proven otherwise. Warning the media and the public against incriminating him, Dr. Luke tweeted in February that “lives can get ruined when there’s a rush to judgement before all the facts come out.” This is true. However, in any highly visible case about abuse, there is a voiceless sea of people whose lives are also impacted by its publicity, including anyone who has themselves been a victim of such abuse. These people are victimized all over again when they are exposed to language and attitudes that tell them their experience doesn’t matter, or that they could have prevented or better documented what happened to them. In fact, they’re victimized all over again whenever anyone attempts to tell them anything about their own experience at all.
In a statement released on Facebook on February 24, Kesha herself acknowledged the important ramifications of her case: “At this point, this issue is bigger than just about me…Unfortunately I don’t think that my case is giving people who have been abused confidence that they can speak out, and that’s a problem.” Lady Gaga—who performed a moving tribute to sexual assault victims at this year’s Oscars, accompanied by survivors onstage—has also addressed how the reporting and public reaction to Kesha’s case is harmful. In a post on Instagram, she wrote to a fan, “I can't believe how many people don't understand rape culture and how it is slyly embedded in our society. The very reason women don't speak up for years is the fear that no one will believe them.”
To use the language of commercial contracts to minimize Kesha’s reported experience, and to misrepresent or publicly interrogate the truth of her claims, is—as Roxane Gay would have it—the “criminal language of sexual violence.” It is to reinforce the idea that there might be anything to gain in falsely accusing someone of rape; it is to participate in a culture of policing rape victims. It is to contribute, directly, to a culture in which an estimated 68% of rapes go unreported. There is no humane way to put a price on a person’s claim that they have been raped or otherwise abused. Even so, that’s what this civil trial—by assessing Kesha’s right to bow out of her contract—will necessarily attempt to do. But before writing on this case, whether for an international media outlet or for a personal Twitter account, consider this: the cost of publicly undermining such claims is huge. Compassion, meanwhile, costs nothing.
A previous version of this article incorrectly stated that producer Bob Ezrin had written about the Kesha and Dr. Luke case. It should have said that journalist Bob Lefsetz was the writer of that article. This was amended on March 4 2016.