the eggshell skull problem

The Eggshell Skull Problem

So I'm not going to go into the whole detail of the Daniel Tosh Rape Joke Crisis on the internet because I think Lindy West has already said everything worth saying about that particular topic at Jezebel. But the whole dust up has made me revisit an issue in American discourse in general that I've come to think of as the Eggshell Skull Problem. It's named after an old principle in common law torts that basically says you take your victim as you find him when you do wrong. The paradigm case is hitting someone on the head in a way that would be harmless for most people, but which for a person with an eggshell thin skull would be life threatening. If that's the case and you do more harm than you thought you would in battering the guy with the eggshell skull, more tough luck to you because you're still on the hook for all the damages.

Where it comes to a physical harm, I think that makes sense. Physical harms of the sort tort law deals with can be expensive and the whole point of the rule is to make sure that the person who is in the wrong bears the cost rather than the injured party. So far so good. The Eggshell Skull Problem, however, is analogous but occurs in a place where we specifically don't hold people legally accountable for their harms, and that's in the realm of speech-acts. For those unfamiliar with the term, a speech-act is any activity whereby one accomplishes some end merely by speaking. The particular speech act in question in this latest controversy is the rape joke speech act. The rape joke is a difficult problem for an open society, and frankly I think our society deals with it particularly badly. That it does so is a result of The Eggshell Skull problem, and my aim here is to explain why I think that is.