Which makes more sense?

Like so many of you, no doubt, I have been following the battle between Kesha/Dr Luke/Sony Music with some interest in the past week or two.

(Kesha is trying to get Sony to release her from her contract, alleging that producer Dr. Luke physically, emotionally and sexually assaulted her and that she does not want to be forced to continue to work with him. Slate  and Gawker  have good summaries if you need to catch up.)

Last week’s big news was that Kesha brought an injunction to get her out of her contract with Sony but the judge denied it.  Injunctive relief is difficult to obtain.  An injunction is a temporary holding pattern until trial so the parties’ position is no worse pending trial or so that the trial is not a moot point.  An injunction is brought when it is necessary to preserve the rights of the parties pending a final determination of the trial: the interim relief cannot be what the final relief is expected to be.  Injunctive relief is used, for example, to keep assets in the jurisdiction or to produce documents or to not destroy documents.  It can be to preserve property so it’s not sold to third parties or taken out of the jurisdiction.

I’m not certain if an attempt to get out of a contract by injunctive relief pending a final determination at trial, the result of which is claimed, is appropriate. If she got out of the contract temporarily pending trial, what would be the point of the trial?

However, one of the key questions that seems to arise frequently in this case is: “If there are allegations of serious physical and sexual abuse, why wouldn’t Kesha have made a criminal complaint instead of starting a civil action?”

This is a little easier to explain.  In some cases, it’s better for a party to proceed by way of civil action for number of reasons.

A monetary recovery of damages is available civilly but not usually in a criminal case. The burden of proof is lesser on the plaintiff than on the prosecution in a criminal trial. The possibility of punitive damages are increased in a civil action when there is no criminal prosecution which could lead to a punishment, mitigating the opportunity of a civil court to impose monetary punitive damages.

A simple civil action is in control of the parties involved, while a criminal proceeding is in the hands of the prosecution, not the complainant.  Also, it is a criminal offense to threaten a criminal procedure to obtain a civil remedy. The complainant can’t say “pay me damages or I will file a complaint with the police” – that would amount to extortion.  (Civil litigators do have to be on guard against their clients making these threats.)

Proceeding with a civil action without any criminal complaint leaves the option open for prosecuting authorities to deal with a criminal matter within their own policies and procedures.  A criminal process sometimes takes precedence over the civil action so a civil remedy may be delayed by several years pending the outcome of a criminal process.

All that is at risk in a civil case is money, and maybe some other intangibles. A criminal process is usually about a constraint on liberty.