Free Kesha: Rape Culture and the Failure of our Justice System

This past week, Kesha lost her injunction against Sony, a legal bid to be released from her contract with producer Dr. Luke. The injunction was filed after a formal complaint against Dr. Luke in October 2014. The complaint charged Dr. Luke with physical, sexual and emotional abuse against Kesha over a duration of nearly ten years, violations of her integrity, dignity and safety that his record label, Kemosabe, and Sony were aware of. Two testimonials particularly stand out: Kesha was twice forced to ingest substances that incapacitated her, only to wake up and discover that she had been raped. Dr. Luke’s sexual exploitation was coupled with an emotional abuse and a controlling supervisory style. Based off of the depiction in the complaint, their relationship had all the characteristics of intimate partner violence.

Kesha, after hearing the verdict for her injunction

The conditions of fear in a household of domestic violence often renders victims silent. Just as mothers may be afraid for the safety of their children, Kesha was “threatened that if she ever mentioned the rape to anyone, he [Dr. Luke] would shut her career down, take away all her publishing and recording rights, and otherwise destroy not only her life but her entire family’s lives as well” (7). Beyond the personal and familial peril that Kesha likely experienced, media and public response has not been especially kind to women who stayed in abusive relationships. The emotional, physical and sexual coercion that occur within such relationships are “private traps,” snares rendered only more dangerous by the lack of empathy for women who stay.

Kesha’s bravery to come forward, and her willingness to abandon her music career in an effort to liberate herself from Dr. Luke and sound the alarm within the music industry, is incredible. Despite the fact that the judge threw out Dr. Luke’s countersuit against Kesha’s mother and manager earlier in February, however, the judge’s decision to hold Kesha to her contract is emblematic of the larger problem of how the justice system handles sexual violence. Criminal courts have historically been unkind to survivors of gender-based violence, in part because the onus is placed upon the survivor to produce evidence that would “substantiate” their claims. The procurement of evidence is complicated by the very nature of sexual violence and the ongoing contestation over the notion of consent. Women who are inebriated, under the influence of substances, or incapacitated are legally incapable of giving consent, yet their incapacitation may also make it difficult to provide a “reliable” account of the event. Sexual violence can also be a traumatizing experience, one that has psychological consequences like short term memory loss, dissociation, lack of affect, and poor episodic memory, meaning that testimony may seem contradictory and therefore fictitious. The criminal justice system, often reliant upon police intake reports, tends to script the sexual violence encounter, a narrative that rarely affords legitimacy to survivors’ stories that deviate from “the truth.” Police officers may also harbor rape myths that survivors are lying or trying to get attention by making rape accusations. The archetype of “the perfect victim” continues to plague the survivors who decide to report.

Other evidence can be collected through Forensic Nurse Exams conducted by trained Sexual Assault Nurse Examiners (SANE). Because these exams are usually conducted with the purpose of filing a report against a perpetrator, the survivor’s body is treated as a field of evidence, one that must be prodded and scraped for data. Hospitals may not be properly equipped to sensitively handle the intake of sexual violence survivors. The exam itself can also be re-victimizing, including some painful procedures that medically invade survivor’s bodies. Nurse examiners can also demonstrate the same callous attitudes as police officers, believing that some women were “asking for it.”

That is, if a survivor can even get to a hospital or a police station. Abusive partners will do everything within their power to keep the victim from seeking help. Since fabrics like clothes or bed sheets may contain incriminating evidence, perpetrators will often wash or dispose of any materials that would link them to possible allegations of violence. Abusers often monitor the movements of their partners and prevent any personal time or freedom that would provide an opportunity to report or seek treatment. If a survivor finally decides to break their silence days, weeks, or months after the most recent physical altercation, however, there is likely no evidence left to collect. Even lasting physical injuries are difficult to convincingly attribute to alleged perpetrators.

If a survivor manages to make it to court, she will be forced to relive her violation day after day, cross-examined by lawyers and impelled to recount her experience. If she is unable to provide evidence from a forensic nurse exam, then her only evidence is testimony, which, as discussed, may be disoriented by the psychological trauma of sexual violence. Lawyers and judges are likely to ask why they didn’t come forward earlier, why they didn’t scream out, why they didn’t fight back; all questions that fail to understand at the most fundamental level the gendered powered dynamics inherent in sexual violence or the neurological consequences of trauma, the body and mind’s fight to survive under life-threatening circumstances.

The justice system is not set up to support survivors. The judge who denied Kesha’s injunction for emancipation from her abuser employed the kind of logic endemic of rape culture, stating that the dismissal was the “commercially reasonable thing to do.” When profit and corporate contracts are more important than the human rights of men and women, that is rape culture. When a survivor simply wants separation from the very person who has violated them, and that desire elicits a poll on Billboard about whether or not music executives believe her, that is rape culture. When Newsweek decides that responsible journalism is a story about the “other side of the college sexual assault crisis,” that is rape culture. When an alleged perpetrator’s word is taken as more convincing evidence as a matter of fact than a survivor’s and a woman’s, that is rape culture. We don’t only need to free Kesha. We need to address the chains that keep survivors shackled to their abusers and a system that tacitly condones such abuse.

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