A Persian Cafe, Edward Lord Weeks

Monday, 22 February 2016

On #FreeKesha: Why You Can't Skip Due Process

NB: This article was written as an attempt to persuade social-justice types. As such, while there is nothing here that I actually disagree with, the emphasis on certain issues is different. This notice may be removed if I become happy enough with the state of the article to publicise it at all. Currently I feel that it needs more feminist shibboleths. It could perhaps do with an actual defence of the presumption of innocence rather than merely its assertion, but I'm wary to include that since the way that I think about this (roughly: how much sense does it even make to speak of this once you accept a Bayesian epistemology, in which all beliefs are probability distributions?) is so radically different from the way in which most people, including most intelligent people, do.


Currently in the news: pop singer Kesha (formerly Ke$ha) has attempted to get her contract revoked by court. The contract obliged her to work with producer Dr. Luke, who she alleges raped her on several occasions. The court, however, found that she is still bound by the contract which has predictably resulted in great uproar across the social justice movement under the hashtag #FreeKesha.

If you accept the claim that she was raped, this is entirely appropriate. If he is a rapist, then Dr. Luke ought to be in prison and the contract torn up entirely. But there's a large problem with this, in the form of a thing called "the presumption of innocence". We can't just assume he is guilty of rape - and in this case, that means we have to assume that any alleged intercourse between the pair was consensual, or at least in a sufficiently grey area that Dr. Luke cannot be held legally culpable. This is hard to do, but in the case of every crime except rape the presumption of innocence is held to be a fundamental part of living in an enlightened, civilised society.

Time for a musical break!


Let's clarify exactly what is at stake. #FreeKesha is not about a woman being forced to work with her rapist, it is about money.

One of the basic legal limitations on contracts is that while a party may be entitled to compensation, they cannot be entitled to specific performance. That is to say, if Ana agrees to pay Bob £50 in exchange for Bob mowing Ana's lawn, she pays him the £50 and he then decides that he really doesn't want to mow the lawn (for whatever reason): Ana will usually be entitled to get her £50 back, often with extra money on top since she has lost out by not knowing that she would need to employ someone else to mow her lawn. What she is not entitled to, however, is to force Bob to actually mow the lawn.

So while the question of whether Dr. Luke raped her is about whether he ought to go to prison, the question of whether the contract should be rescinded is really about money: it is about whether or not Kesha should have to pay compensation in order to be free of the contract, or whether Sony and Dr. Luke should be obliged to release her for free.

This isn't to say that money is unimportant. Is Kesha was raped, there's no reason why she should have to pay her rapist in order to be released from the contract. But it's important to be clear about exactly what the issue is.


Now it's obvious how the presumption of innocence applies to the question of whether or not Dr. Luke raped her. While we ought to express sympathy for every person who claims to have been raped, this does not mean we should skip the procedure of going through a fair trial before we declare the accused party guilty and imprison them. Imprisoning someone merely on the basis of an accusation is a clear breach of their basic civil rights - indeed, their basic human rights - but merely having a contract rescinded? What harm can that do?

In this individual case, not much. As I have already said, all this is about is the matter of a few million dollars. If we rescind the contract without a court case Kesha is a bit richer, if we maintain the sanctity of the contract until Dr. Luke is proven guilty beyond reasonable doubt in front of a jury of his peers, he and Sony are a bit richer. Unless there's some inherent reason why one of them deserves the money more - a topic about which there will be a thousand and one arguments, all of them awful - there's no way to answer the question of which ought to get it without first answering the question of whether Dr. Luke did indeed rape Kesha. Which takes us back to the presumption of innocence.

To be honest I'm not really familiar with Kesha's music, so here's a
cover of one of her songs by one of my actual favourite bands.

What about the wider effects, though? Rescinding the contract without a full trial would send a clear and public message that if you're in a contract which you want to get out of, rape accusations - whether true or not - will do that for you. False rape accusations are not something we should want to encourage, since quite apart from the effects on those who are falsely accused (overwhelmingly, by the way, men from ethnic minorities) their stories, when they fall apart, cause actual rape victims to be taken less seriously. Anti-feminist articles like "13 women who lied about being raped" are short on genuine statistics about the low incidence of false rape accusations, but nevertheless they are only made possible by the fact these incidents do happen.

Might such accusations become common? I don't know enough about the music industry to know if this might happen more widely, and there aren't that many other industries where a single individual is likely to be bound by a contract for years on end. But you can think of other cases. A woman wants to move out of her rented apartment at a single day's notice, contrary to a contract requiring her to let the landlord know a month before so her can sort out the next tenant. Most women would never even think of making a rape accusation here. But, as much as we may dislike this fact, there are some who will. And if we decide to support every alleged rape victim, we will end up supporting these people among them.


What can we do then? Play whist from the side while Kesha has to endure a painful trial to obtain justice? Well, first I think we should be conscious of how little most of us can do in this one case. The fact that there's no way to short-cut the legal process in this particular case doesn't mean that there aren't a whole load of other good causes that we absolutely know the right side of: FGM, implicit bias and racial prejudice, and Islamophobia, to name just three. These are causes which we absolutely can and should protest about loudly, where there simply aren't the same contentious legal cases which have to resolved before we know exactly what we should advocate.

Secondly, if you feel so strongly about Kesha's situation, I daresay you could help crowdfund her to buy out of her contract. Presumably (NB: I am not an expert!) this would be returned to her if Dr. Luke were indeed found guilty, and then it could be returned to the crowdfunders. Maybe Kesha could put her first independent album on Kickstarter, with proceeds being used to buy her independence and contributors receiving advance copies of the album as a reward. This is what the internet is for.

The key point I hope I've made is this: you can't circumvent the need for legal process. Taking the presumption of innocence seriously means making hard choices - the urge to advocate for Kesha is the urge for justice, the very noblest urge of all - but it is a cost we have to bear for being a civil society.

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