I hate it when people start a piece of writing with “According to Webster’s Dictionary” or similar cringes before the audience. But whenever I think of Daniel Tosh (which is seldom) I can’t help but think of the (British English) definition of “tosh”, which is “nonsense, trash, bullshit”. I checked out the etymology today at the Oxford English Dictionary and didn’t find one. (Aside to the OED: Be ashamed.) But one of the early appearances of the word was in cricket slang, where it referred to “bowling of contemptible easiness” (a “meatball” in terms of American baseball slang). So maybe it’s a variant of “toss”–a throw that’s contemptibly easy to hit.

The takeway, I think, is “contemptible easiness”. Is there a better way to sum up Tosh’s schtick than that?

Normally the guy doesn’t appear on my radar, because I have more reliable sources of funny stuff on the internet (starting with the internet).

But I’ve been hearing and reading stuff about him lately because of this business, where he apparently was trying out a riff on rape jokes, a member of the audience objected, and he speculated about how funny it would be if the audience member were gang-raped, then and there.

Tosh has issued the standard comedian’s non-apology apology (He’s like Lenny Bruce, working on the edge, you know?) and the audience-member’s account has been disputed by the club owner.

Sort of.

The audience member says she shouted, “Rape is never funny!” and that Tosh responded to her challenge by saying, “Wouldn’t it be funny if that girl got raped by like, 5 guys right now? Like right now? What if a bunch of guys just raped her…”

This is the club owner’s forceful defense of the comedian: “Daniel came in, and he said, ‘Well it sounds like she’s been raped by five guys’–something like that. I really didn’t hear properly.” So, the defense is that Tosh didn’t say what a witness says he did, because another witness “didn’t hear properly”. Urgh.

There’s been enough of a furore about this online that it shouldn’t be necessary for me to write about it. I don’t have anything to add; I wasn’t there. It doesn’t involve me. It does not involve me. I was nowhere near Los Angeles.

That’s what I thought until I read the Salon piece about this mess. The writer, Roxane Gay, quotes a bit of an old Latin tag: Qui tacet consentire is Latin for, ‘Silence gives consent.'”

That’s essentially accurate. The full phrase is qui tacet consentire videtur. (Its most famous appearance in literature is in Bolt’s A Man for All Seasons, where More quotes it in the truncated form that Gay uses. Apparently the expression goes back to Boniface VIII, a 14th century pope. Hurray for Google!)

A more literal (not more accurate) rendering of qui tacet consentire videtur would be, “He who is silent seems to consent.” It’s more literal, because the Latin pronoun here is masculine. But it’s not more accurate, because in the patriarchal society this maxim rose out of, maculine was the default gender for people. It doesn’t matter for the legal principle whether the person remaining silent is male or female.

But maybe, in this case, it does matter. It won’t have escaped your eagle eye that that audience member who objected to Tosh’s rape riff was a woman. Roxane Gay is a woman. This makes sense, because rape is one of those women’s issues that don’t really involve men, like birth control or empathy.

In fact: men are occasionally involved in rape. As perpetrators, for instance. But even more as silent witnesses, consenting to rapes, to rapists, to a culture that trivializes rape–or, more disturbingly, uses it as a weapon to shut women up.

It is anyway ridiculous for comedians to defend material like this on the grounds of “edginess.” Rape humor is increasingly mainstream. An infamous example would be the rape monologue from last year. The monologist became the butt, as it were, of the joke, without seeming to be aware of it. But he seemed to think it would be received differently, and lots of people seem to feel the same about their rape jokes.

But the issue isn’t even about jokes. Tosh used the threat of rape to shut a woman up, literally shouting “rape” in a crowded theater of suggestible fans.

Can we believe that Tosh was actually encouraging the crowd to assault this woman?

Yes. For instance, in an “audience participation” section of his show in April, he encouraged male viewers to record themselves “lightly touching women’s stomachs while they’re sitting down”. He signs off with this admonition: “Be careful! Because they like to pretend like they don’t love it.”

There are currently dozens of YouTube videos up where dangling members of his obedient brohort go out and grab women without their consent.

Tosh knows that a certain number of people in his audience are apt to do what he suggests. He suggested that the woman in the audience be raped. She left the show early and so we’ll never know if Tosh’s little experiment would have yielded a result. Good for her.

But it’s good for Tosh, too. Because he wasn’t telling a joke. He was inciting violence.

That’s not, in fact, legally protected speech. But it will always go unpunished, it may even be rewarded, as long as we consent to it.

Or even if we stay silent.

About JE

James Enge is the author of the World-Fantasy-Award-nominated novel Blood of Ambrose (Pyr, April 2009). His latest book is The Wide World's End. His short fiction has appeared in Swords and Dark Magic (Harper Collins, 2010), Black Gate, the Stabby-Award-winning anthology Blackguards and elsewhere.
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