After Dismissing Kesha's Case, Judge Makes Bizarre Comment About Rape

Kesha performing in 2010. Photo by Jeff Denberg (Creative Commons).

Once when I was a kid, I was playing air hockey in a neighbor’s basement. He bet me that if I lost the next game, I would have to kiss him. I took the bet, because I thought I would win, and because I was nine. I wasn’t old enough to evaluate the consequences. When I lost, I refused to kiss him. Even at that age, I somehow knew that I owned my body. He disputed my claim, and we took it upstairs to his mother. “She has to kiss me,” he said. “I don’t want to kiss him,” I said. “You made a bet,” she said. “You have to kiss him.” I was devastated to find myself in this situation, to have agreed to something that I would not, could not, now do; and to be told by an authority figure that, in fact, I must do it. I went home without kissing him, because I had the freedom to leave, but I lost faith in adults that day, to decide what was fair or to protect me and my body.

I can’t imagine how it would feel, as an adult, to be told by a court of law, an indisputable authority in our society, that I had to honor a contract I agreed to ten years ago—a contract that might never end—a contract that I had signed with someone who went on to abuse and control me, sexually and emotionally, during the next decade. But that’s what singer Kesha keeps being told, over and over again.

Kesha’s case against Sony was dismissed by a New York judge yesterday. It’s the latest in a string of judicial decisions against the singer in her campaign to be released from an all-encompassing and maybe literally never-ending contract with Lukasz Gottwald, a.k.a. Dr. Luke, a.k.a. a very rich and powerful producer who Kesha says has abused her. Since it’s a civil and not a criminal case, the judge has not been deciding whether or not the abuse that Kesha alleges actually occurred, but whether or not her accusations mean that she should be released from her contract, which requires her to put out a total of six albums with Dr. Luke. Since Dr. Luke gets to decide whether and when an album gets released, he could stretch this six-album contract out forever, potentially blocking Kesha from ever putting out an album out again. This is a business case, even though it hinges on crucial social and political issues. The courts have ruled repeatedly in favor of the financial success of Sony—in February when a judge ruled against an injunction Kesha sought in the case, the judge said, “My instinct is to do the commercially reasonable thing.”

Lady Gaga posted this photo on her twitter in February in a show of solidarity with Kesha

So, fine. Judges care more about commercial interests than alleged sexual abuse. It is nearly impossible to get released from a shitty contract even if you signed it when you were 18 and have spent the better part of the last ten years trying to get out of it. The music industry gets its lifeblood from exploitative relationships between powerful men and conventionally attractive and talented young women. R. Kelly still doesn’t know he’s a sexual predator. Everything is as I expected. I can go cry myself to sleep again.

But then! When New York Supreme Court Justice Shirley Kornreich handed down her dismissal yesterday, she started out specific and precise, like a judge is supposed to be. She said, “Although [Luke's] alleged actions were directed to Kesha, who is female, [her claims] do not allege that [Luke] harbored animus toward women or was motivated by gender animus when he allegedly behaved violently toward Kesha.” After she finished that sentence, the Justice decided, perhaps for her own amusement or just because she truly does not give a shit about rape, to let everyone know that, in her Honorable Opinion, “Every rape is not a gender-motivated hate crime.”

Which ones are, then? How do we know when a rape is a gender-motivated hate crime and when it’s, you know, just a rape? What does that even mean? In a world where one in five women and one in 71 men report having experienced rape, what is a rape that is not motivated by gender? When a woman is threatened with rape for holding a bake sale to raise awareness about wage inequality between men and women, would that rape be a gender-motivated hate crime? What about when a woman is threatened with rape and death for proposing that England put Jane Austen on its money? The more I think about it, the less the phrase seems to make sense to me. “Every rape is not a gender-motivated hate crime.” So clearly some of them are? But not this one? Is the judge saying, “Alright, maybe he raped you, Kesha, but it didn’t have anything to do with your gender”? Is she saying, “He just raped you because he wanted to control you completely, not as a woman, but as a person”? I just don’t know how to separate those things, and it makes my brain hurt to try.

The legal debate over this case shows a real dark side of American culture. In our society, a person who has the legal authority to decide who gets their way in a dispute believes it’s a good use of their time and speech power to remind everyone that rape is not as important as they think it is. If the legal apparatus doesn’t take the sexual assault of a celebrity seriously, in a high-profile case with high stakes, how can we have hope that it will be taken seriously for the average person?