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What Kesha's unbreakable contract says about how courts approach rape cases

Kesha performs onstage during the Silverlake Overpass four-year anniversary party on February 6, 2016, in Los Angeles, California.
Kesha performs onstage during the Silverlake Overpass four-year anniversary party on February 6, 2016, in Los Angeles, California.
Katie Stratton/Getty Images

To fans and supporters of pop idol Kesha, Friday's court ruling seemed unthinkable: New York Supreme Court Justice Shirley Kornreich effectively forced Kesha to continue working with the man she says raped her.

The case is a bit more complicated than that. But that doesn't necessarily make the ruling more just. It also reveals yet another way the justice system can fail victims of rape and abuse — and shows that even rich and famous women aren't immune to these failings.

This isn't the end of the road for Kesha, but it's a major setback

Kesha says that superstar producer Dr. Luke sexually and emotionally abused her for a decade, which contributed to her eating disorder and mental breakdown. She's suing him for sexual assault, battery, and sexual harassment as a result.

Dr. Luke denies the allegations, has countersued for defamation, and says Kesha is just looking for an excuse to get out of her contract.

This isn't Kesha's last chance to sever ties with Sony and Dr. Luke. Kornreich denied Kesha's request for a preliminary injunction to get out of her contract with Sony, which leaves Kesha stuck for now — but her lawsuit against Dr. Luke is still pending, and it's possible the two parties could work out a settlement before then.

It's also true that Sony won't make Kesha continue to work directly with Dr. Luke in order to fulfill her six-album contract.

But none of this means much, Kesha and her lawyers argue, given Dr. Luke's tremendous power and influence at Sony, and given the reality of how brief a pop star's career can be.

Kesha's attorneys say Sony simply won't promote anything Kesha does with a different producer because Dr. Luke wants to set Kesha up to fail. Meanwhile, if Kesha has to wait for her lawsuit against Dr. Luke to be resolved, she won't be able to record with anyone else during that time, she'll fall further into obscurity, and her career will effectively be over.

Kornreich wasn't convinced by this argument. "You're asking the court ... to decimate a contract which was heavily negotiated and signed by two parties in an industry where these kinds of contacts are typical," she said. "It's not in [the company's] best interest to not make money and not promote a recording artist."

Kornreich also said that her instinct is "to do the commercially reasonable thing," and that there has been "no showing of irreparable harm" given that Kesha still has the opportunity to record.

This may well be true and reasonable from a commercial standpoint. But the reasonableness, or potential for irreparable harm, of keeping a woman under the power of the man she says abused her didn't seem to factor into Kornreich's decision.

And this is probably because the judge simply didn't believe Kesha's story, or at least didn't think it would hold up in court.

The big problem: It's tough to get courts to believe rape victims

"I think if the judge really believed that this conduct occurred, the judge would find a way to relieve Kesha of the obligations," said Southwestern Law School professor John Heilman. "I think a court would be hard-pressed to say, 'Well, you have to continue to work with somebody who we believe sexually assaulted you.'"

A judge could, and should, easily find some way to relieve a victim of contractual obligations in this situation, Heilman said. Maybe the court would find that the abuse put the victim under duress when the contract was originally signed, which would make the contract invalid. Or maybe the court would find that rape and abuse simply violate the implied terms of fair dealing and good faith in the contract.

If, that is, the court was convinced that the rape or abuse happened in the first place. And when it comes to rape, courts can be tough to convince.

Justice Kornreich noted that Kesha hadn't provided evidence of the attack, such as hospital records. But rape and sexual assault are notoriously underreported, and notoriously difficult to prosecute successfully.

Victims might delay reporting the crime or seeking medical attention (or not report at all) due to shame, stigma, and trauma. Fluids wash off in the shower and bruises heal, so physical evidence for rape often doesn't last long. And police tend to be so skeptical of victims' stories that they don't always follow up on other evidence, like text messages or a witness who heard the story.

This is a bad enough situation for rape victims who are seeking justice. But it's disturbing to think that if a woman wasn't careful enough about collecting evidence after her attack, it wouldn't just mean keeping her rapist out of jail. It could also mean keeping her contractually obligated to her rapist.

Of course, Heilman said, this can be problematic from both sides. You definitely don't want to force people to continue business relationships with their abusers. But you also don't want to let people get out of their contractual obligations without any good evidence of wrongdoing.

Still, false reports of rape are rare (somewhere between 2 and 8 percent of reported rapes), and false reports are usually vague about the attacker's identity and don't name a specific person.

Given how much society reflexively blames victims, it's hard to argue that going public about rape is a fun, easy way to get attention and improve your lot in life.

And given the rampant, often-documented abuse of power in the entertainment industry, Kesha's story seems all the more believable — and problems like hers all the harder to solve.

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