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.

First tho, there is a concept in feminist theory that may need explanation for the reader who isn't particularly up on the shibboleths of Petit Bourgeouis feminism, and that is the notion of "rape culture." In order to model & explain how and why rape occurs, certain second wave feminist theorists adopted a socioeconomic view of the problem that relied heavily on an uncredited Marxian assumption that the crime of rape was primarily a structural problem that emerged due to the features of patriarchal society. On this view, rape is inevitable and will continue to occur so long as culture writ large implicitly tolerates, condones, or even advocates for the use of rape to oppress women.

The view has some distinct advantages. First, it ties together the key 2nd wave feminist concept of patriarchy, the social ill of "slut-shaming," and the perceived problem of victim blaming in the way that society in general but specifically the justice system treat rape. Any theory that coherently explains and points to solutions to multiple disparate problems has to be seriously considered as a candidate for the "actual truth of the matter," so the rape culture theory has that going for it. But additionally, the notion of rape culture draws attention to certain problems about how women are treated as sex objects, and if one buys into the theory, one is more likely to look closely at one's own attitudes about the role of women and sex in our lives and recognize where we may do harm out of habit. I know that was certainly true for me when I first encountered the issue in my early twenties.

The problem with the rape-culture theory, however, is that it's logically and socially unsound. At the same time that it tries to bring an end to the blame the victim attitude that it defines as systematic throughout culture, the theory implicitly removes blameworthiness and responsibility from actual real life rapists. If rape is a culturally created problem that we're all always already steeped in, then in a sense rape is OK because what society chooses not to condemn can't be held against the individual from within that society. And as Hilary Putnam among others has argued, it is impossible to take a "God's Eye View" of society and see all cultures from the outside, completely objectively. But the result of freeing rapists from blameworthiness is a clearly unacceptable result, so the proponents of the rape-culture theory often engage in a bit of philosophical legerdemain when the problem arises to deal with it. Which is all well and good, and the sort of thing people do to save theories all the time. The problem is that these are theories that are within the comprehension of most readers with a high school level education.

So then unlike the controversial loggerhead between, say, loop quantum gravity and string theory, the notion of rape culture is capable of spreading in meme form throughout the subculture of people who choose to follow the output of theoretical feminism. Such armchair theorists, of course, inevitably only deal with things in their most absolute and unnuanced form, so, like in so many other areas of political discourse, you get a lot of largely uninformed yahoos on the internet tossing around terms they only half understand and build a sort of shadow model of the academic discourse they are mirroring in a political reality. The result is a heavily dumbed down and even less workable theory of the model which is now taken to be an absolute truth not open to debate.

From there it somehow metamorphoses to crazy town, and I'm really not sure how that works, but it happens so often and so repeatedly in our era that it strikes me as something that must belong intrinsically as an impulse of the human psyche. Because to be sure, in every area of the intellectual life of the public, it is clear that the discourse is largely upheld on all sides and all opinions by the aforementioned uninformed yahoos. So it should not be surprising that philosophical feminism on the internet is also a victim of this tendency toward the brutish and the absolute.

From this is where the pronouncement that the anonymous woman that Daniel Tosh mocked at his show, that "rape is never funny," comes from. Rape is never funny is an oft repeated slogan of certain sectors of the partisans of the rape culture theory. This is because if you understand the rape culture theory you understand that anything discussion of rape that isn't an active attempt to eliminate it or condemn it is a contribution to the pre-existing socio-economic status quo that is the reason rape is so common in the first place. And if you're starting to project that line of reasoning ahead in a more or less circular direction you're not wrong. The rape culture theory is rife with question begging, and it doesn't really work. But that's not a problem. The world is full of bad theories. The problem emerges when the eggshell skull types emerge.

You can always spot a person with an eggshell skull, or the Humpty Dumpty Brigade as I call them, because they're usually doing everything in their power to make people feel sorry for them and as a result they're more often than not right at the center of attention for apparently no good reason. I'm sure you have someone like this in your life. You probably have multiples of them. I know that I have often had a half dozen or so relatively ready to hand at a number of times in my life. The Humpty Dumpty Brigade are distinguishable by the twin features of 1.) how easily offended they are, and 2.) the fact that they never do anything to avoid situations where they will undoubtedly be offended. These are people who, for example, listen to right wing radio and don't bother to check the facts because they'd rather be pissed off at the black guy over a lie than content with the more mundane truth.

Now, I'm not saying for sure that the woman who got insulted at Daniel Tosh's show was a member of The Humpty Dumpty Brigade. I really have no idea. All I can say is that as a result of reading the shibboleths in her tumblr account of the whole thing, there are a few indicators of Eggshell Skull syndrome that stand out to me. But that's neither here nor there. Because what I really want to talk about is not the Daniel Tosh thing because, really, one Dane Cook was one too many already. What I really want to talk about is the vast cultural acquiescence to the Humpty Dumpty Brigade that what they do is an alright sort of thing to get up to, when really it just isn't and in fact it's really pretty pathetic and lame.

Because in our society we've made a choice to champion open discourse. The right of free speech is the right to say unpopular, insulting, awful things. And that's good for all the very poetic reasons that Supreme Court Justices always talk about whenever they strike something down as offensive to the First Amendment. And the thing is, if that's the case, then all of that ugly speech is something we can't say is harmful, because we want to foster the exchange, and to publically and heroically have the conversation rather than stamping it under foot. And that noble purpose is only ever derailed by the Humpty Dumpty Brigade.

They function almost like classic agents provocateurs, seemingly purposefully inserting themselves into situations where they are likely to be offended. And their being offended is nothing personal, usually. It's one thing to be offended if someone tells you you have a bad haircut or you can't drive well. It's another to be offended, personally, by a disagreement in the abstract and to take that as an injury. And it's another thing alongside that to expect the world to cater to your thin skin, because unlike in tort law, we actually want people to speak their minds and loudly. This has nothing to do with privilege or variable levels of power and everything to do with what is and is not good for discourse. It leads to little more than retrenchment and disunity among natural allies. And that's a problem for democracy.

Because as soon as a member of the Humpty Dumpty Brigade shows up in a conversation, discourse shuts down. And shutting down discourse is bad. But that's precisely what the rape culture theory in the hands of the Humpty Dumpty brigade does. It stops people talking and thinking because rather than focusing on the issues and the wider problems that affect us all as we struggle to try to find a way to live together more or less harmoniously, when the Eggshell Skull guy shows up the whole conversation is derailed and instead everyone has to talk about Eggshell Skull guy and his fevered ego which has taken the place of a legitimate topic of conversation.

This is a phenomenon that is hardly limited to any one political camp. You see it a lot around the rape culture model, but it also shows up in other places. The constantly ongoing blog wars between feminists and transgender activists over which camp is oppressing which, for example, or the entirety of the Fox News/Right Wing Talk Radio whereby lots of rich white men are forever talking about how victimized they are. All of this is bullshit. Unless someone has literally harmed you in some specific way other than saying something mean about you, you are not a fucking victim. We live in an open society where there are no controls over speech other than organized counter-speech. As a result people are going to say things that you do not like, that make you unhappy, and that make you angry. However, internalizing that anger, unhappiness, and displeasure to the point that a statement that you don't like gives you cause to be personally offended is a choice that you make about associating certain values with your sense of identity. And as a choice, it's not something that the rest of us need to have all that much sympathy for.

The proper response, the right way to deal with a society that works the way ours does is to not entangle your personality and your own sense of self with the things people do that make you angry. Let it make you angry and speak up about that all you want, but don't claim that it does you any harm, because that's what taking offense is. And as soon as you do that, you've implicitly made the claim that your own personal feelings and delicacies are so important that the rest of us need to be careful not to fracture your eggshell skull. However, in this case the eggshell skull is of your own making and accordingly you are responsible for your own victimization, and that's true whether the thing you don't like is rape jokes or Obamacare. In the end it should do you no harm, and the rest of us should not have to cater to your feverishly overblown sense of self-importance just because you've made the choice to take offense. Because, really, when it comes right down to it, bottom line that choice is selfish and anti-social, and you're in the wrong for making it.

And that's why we deal with Rape Jokes badly, because huge numbers of men and women in this country have been raped. It is a vast and unacceptable problem in our society that we have failed to address adequately, and we should all be justifiably angry about that. However, that does not translate to confirmation that "rape jokes are never funny." Because sometimes rape jokes are very funny. I think Lindy West got it about right in her assessment of when they should and shouldnt' be, but her analysis remains problematice because sometimes things are funny because they're wrong, and dark, and represent a humorous take on something very vile. Gallows humor is nothing new in society, and some people, myself included, often prefer black comedy to more staid fare. Why? Because it makes us feel better about these things that terrify us and make us angry to laugh at them. Laughter is medicine against the evil of gallows humor, and it serves a good purpose to promote that laughter at evil. It doesn't condone the evil, because the humor is there because it's recognized and acknowledged as evil. And so sometimes a rape joke is funny just because it's wrong and we are all participating in the language game of black humor. Here I differ with West's analysis of Louis CK's rape joke in the linked article, because it's not that Louis CK ultimately is a good guy that the joke is good, it is because he's making fun of a terrible evil and giving us a chance to laugh at something that otherwise might make us cry or start screaming and never stop if we couldn't push it out of our consciousness.

But because of the Eggshell Skull Problem, when someone goes there and jests at the steps to the gallows, whistling past the graveyard in a heroic attempt to beat back the evil with laughter, sometimes people take offense when they shouldn't. And for some reason that I don't understand, when that happens, rather than telling the person who is choosing to take offense that their reaction is inappropriate and they need to take a deep look at where their motivations for recentering the conversation on their own egotistical desire, we sometimes enable that inappropriate reaction to our own collective detriment. Now, I'm not saying that's what happened with Daniel Tosh. Like I said, I think one Dane Cook was too much, and Tosh's brand of pushing the envelope in my opinion wears pretty thin pretty fast. But there's enough to the story that looks like a manifestation of the eggshell skull problem that I wanted to take the time to break the problem down and really take a look at it. So that's where we're at. Rape jokes can be just as funny as anything, and just as unfunny as anything. And if a bad rape joke that isn't funny makes you angry, by all means yell at the comedian for being a callous dick. But don't make it about you, because it isn't about you, and the choice to ignore that fact is selfish and pathetic and the rest of us should not be enabling you in that behavior.