Tonight’s Law & Order: SVU started with a special warning: “Due to sensitive content, viewer discretion is advised.” Whoa, I thought. When a show that has tackled dolphin sex, vodka tampons, and sexualized amputation fetishes has to open with a warning, you’d better brace yourself. But although the language was offensive, the episode tackled some real issues in a way that was explicit and interesting but not exploitative.
Riffing on the real-life Tosh scandal, “Comic Perversion” was about a comedian who jokes about rape. The fictional “Josh” headlines at a comedy club, where he gets laughs by suggesting that rape is funny, and that a feminist protester in his audience will “get” the joke if she’s gang-raped later that night. Later that night, two guys from the audience do assault poor Renee. Luckily, she gets away.
The detectives argue with the ADA about whether Josh is legally responsible for Renee’s assault or whether his speech is protected by the First Amendment. This debate soon becomes moot.
As our detectives investigate at the club, another girl, Carly, tells them she “might have been” raped by the comedian. The facts are grey. On the night in question, she went to his show (for the sixth time), then drank, danced, flirted, and made out with Josh, before retiring to his penthouse, where she ordered more champagne, lay on his bed, and blacked out. When she came to, he was sodomizing her. She doesn’t remember if she said “yes” or “no” to that.
After this incident becomes part of Josh’s standup act, she reports it as a rape. Olivia somehow convinces ADA Barba to bring the case. Josh uses the trial to talk about being an edgy social commentator. He also shows a cell phone video of Carly flashing the audience shortly before going home with him. The government is about to lose the trial, which infuriates Renee, our feminist protestor.
Renee goes vigilante. She buys a pair of glasses that have a hidden video camera. She picks up Josh in a bar and goes to his penthouse, where he promptly proceeds to attempt to rape her. She gets away, thanks again to her impressive self-defense moves.
Renee gives the video to Barba, who uses it to get a plea deal out of Josh. Carly is just happy she can now sue him civilly. Barba snarls to Olivia, “If you want to stay commanding officer, don’t bring me any more cases like this.”
What they got right:
Comedian Daniel Tosh set off a whirlwind of controversy when he allegedly joked at a comedy show that it would be hilarious if a five guys raped a woman in the audience.
Tosh has made rape jokes in the past, but, according to one blogger, this incident started when an audience member suggested “rape” as a topic, and Tosh said something to the effect that anything can be the launching point for a joke. A woman said, “Actually, rape jokes are never funny.” Tosh allegedly responded, “Wouldn’t it be funny if that girl got raped by, like five guys right now? What if a bunch of guys just raped her?”
Chilling and repugnant as these words were, they’re not illegal. With narrow exceptions, the First Amendment protects our speech, even horrible and totally-not-funny speech. Tosh didn’t aid or abet anyone in the audience, nor did he conspire with them. ADA Barba was correct not to bring the criminal charges against “Josh” for making a similar statement.
Tonight, SVU used its own free speech rights to take a shot back at Tosh. Good for them. That’s the American way: make your best argument, and let the best words win.
SVU’s showrunner, Warren Leight, called out Tosh directly tonight, tweeting: “Somewhere, I hope @danieltosh is watching. If he… evolves, he could help get the word out that #RapeIsNoJoke. #SVU.” So far, Tosh hasn’t responded.
I was also impressed with how the show portrayed the (separate) issue of the difficulty of prosecuting acquaintance rapes involving intoxication. When does intoxication vitiate consent? What if the victim seems to be consenting, but is actually blacked out? Does it matter if the perp was drunk too? These are questions that sex-crimes prosecutors deal with regularly. The answers are never black and white. Tonight’s show skillfully captured the many shades of grey, and showed how challenging these cases are to prosecute.
What they got wrong:
This was a Hollywood ending: lots of drama, intrigue and dark-red lipstick, but little authenticity. I’ve never known a civilian to go undercover in a vigilante sort of sting. And the idea that this civilian, Renee, a rape survivor herself, would set herself up to be raped a second time, all so she would have evidence (which would probably be inadmissible) in someone else’s trial, was over the top.
What do you think, SVU fans? Should a comedian be responsible for what his audience does after hearing his show? How does intoxication affect consent – and is that different depending on the gender of the intoxicated? And is Olivia going to break up with Cassidy because he liked “Josh”? Leave your comments.