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Time, Place, and Manner

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Did Kickstarter Fund a Book Filled With Rape Tips?

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Short Answer: No.

Now, none of the blogs or mainstream news outlets have bothered to offer a thoughtful analysis of the subject when reaching the opposite conclusion, but what the heck, let's be the first.

Ken "TofuTofu" Hoinsky wrote a pickup artist guide and then went to KickStarter to raise funds to get it published. He was seeking $2000 and managed to bring in $16,000 -- a lot more than your average first time published author earns -- largely by promoting the book through Reddit's pickup artist sub. Shortly before the Kickstarter window closed, a small time comedian, Casey Malone, found the project, read some of the samples of the book, decried it as a book dedicated to teaching the average frustrated chumps of the world that the way to finally score with women is to rape them:

This guy is no longer just being weird and creepy on the internet. Now he’s writing a book about how to sexually assault women, and he is using something I believe in (Kickstarter) to ask YOU for money to do it. I am offended as someone who believes in the platform, and more importantly I am offended as someone who believes women shouldn’t be treated this way, and that people who say otherwise CERTAINLY should not profit off saying they should.

This isn’t harmless. People come to these boards because they are scared of being humiliated, and they are saying to the world, “Tell me what to do, because I don’t know what to do.” And this guy has chosen to tell them, “You should be a rapist.”

One thing leads to another, and the campaign to have KickStarter revoke TofuTofu's funding goes viral. Here's a sampling from around the internet.

Slate: "sounds like a guide to sexual harassment."

Daily Beast: "That’s right, boys, consent isn’t going to help you get your hands up a woman’s skirt. “Force” is a much better bet. History has shown us that “aggressively escalated” physical contact is fast and foolproof, according to Hoinsky. It also constitutes sexual assault. But let’s not ruin the fun for all the nitwits out there who will have to learn this the hard way, when taking Hoinsky’s advice lands them in jail."

Forbes: "advice that’s less about charming and more about pushing physical boundaries with blithe disregard for physical consent."

Jezebel: "Hoinsky endorses straight-up sexual harassment and assault."

Feministing: "his advice is a play-by-play description of sexual assault."

The Frisky: "a new book that conflates advice on how to date rape women with tips on seduction." and "filled with rape tips."

You get the idea. A few bigger mainstream outlets, such as Yahoo and MSN picked up the story, but in the style of modern news, they just reported that "So and so is claiming..." Journalism is hard after all, news aggregation is easy. Why bother reading the material that's the subject of a controversy when you can just report that there's a controversy?

But what if someone actually did some work before hitting the Publish button? Let's find out. We're going to look at the laws of three states to see if the actions TofuTofu advises guys to take would qualify as either rape or sexual assault. We'll look at New York and California since they're big ol' highly populated states and NYC and LA are the pickup artist capitals, and also Connecticut, TofuTofu's home state. But first, let's see the advice that got the whole thing started:

Exhibit A:

To quote Rob Judge, “Personal space is for pussies.” I already told you that the most successful seducers are those who can’t keep their hands off of women. Well you’re not gonna be able to do that if you aren’t in close!

All the greatest seducers in history could not keep their hands off of women. They aggressively escalated physically with every woman they were flirting with. They began touching them immediately, kept great body language and eye contact, and were shameless in their physicality. Even when a girl rejects your advances, she KNOWS that you desire her. That’s hot. It arouses her physically and psychologically.

Exhibit B:

Pull out your cock and put her hand on it. Remember, she is letting you do this because you have established yourself as a LEADER. Don’t ask for permission, GRAB HER HAND, and put it right on your dick.”

Exhibit C:

Decide that you’re going to sit in a position where you can rub her leg and back. Physically pick her up and sit her on your lap. Don’t ask for permission. Be dominant. Force her to rebuff your advances.

And endless number of comments on the various websites that have written then have been along the lines of "If I meet a guy at a bar and he picks me up and sits me on his lap, I calling a bouncer" or "There's no way I'm sleeping with you if we're walking down the street and you put my hand on your dick." That's what happens when you take material out of context. Normally we roll our eyes at the "out of context" defense, because it typically isn't accompanied by the contextual explanation, but we're going to explain. These quotations come from a section of the book titled "Physical Escalation and Sex," which follows things like "flirting" and "getting her number." The advice is largely about what to do with a woman once you've got her into bed, or at least back to your place and on the couch. It's not telling you what to do with a complete stranger you just started talking to at a bar. You can decide for yourself if that is a distinction with or without a difference.

Moving on to the state laws, and starting with good ol' New York:

NY Rape 3rd:

A person is guilty of rape in the third degree when:

1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than

seventeen years old;

2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or

3. He or she engages in sexual intercourse with another person without such person`s consent where such lack of consent is by reason of some

factor other than incapacity to consent.

NY Criminal Sexual Assault 3rd:

A person is guilty of criminal sexual act in the third degree when:

1. He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other

than being less than seventeen years old;

2. Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen

years old; or

3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of

consent is by reason of some factor other than incapacity to consent.

NY Forcible Touching:

A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire.

The rape and sexual assault rules apply to sexual intercourse and oral and anal sex, and the quoted material from TofuTofu doesn't go that far, so both of those are ruled out. As for forcible touching, it's not for the purpose of degrading or abusing the other person. You may argue that is the effect of the actions, but it's not the intent. But is it for the intent of the actor's sexual gratification? That could be argued either way, and it's not entirely clear what "gratification" means. It's also unclear what counts as a "legitimate purpose." If you move your partner in order to adjust or change positions, that would be forcible and for the purpose of gratifying the actor's sexual desire, but is "the angle wasn't quite working for me" a legitimate purpose? Who knows. The advice in TofuTofu's book might run afoul of this law, but only because it's so poorly written. We suspect though that you're unlikely to see a forcible touching prosecution brought for fooling around in bed with an otherwise consenting adult. Also, forcible touching is a Class A misdemeanor, considerably less serious than sexual assault and rape.

Next up, California, and we're going to trim some of the parts that aren't relevant here. California writes their statutes in a different style that makes them unwieldly to reproduce in full

CA Rape:

261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

CA Sexual Battery:

243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.

(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery [The first sexual battery subdivision comes with a penalty of at most one year, so they're both misdemeanors. No idea why they're described differently.]

Again, rape requires sexual intercourse, so that's ruled out. As for sexual battery, it's her intimate parts that need to be touched, not your own. But, let's presume that we do get to that level of touching. The statute doesn't specify just what it means for an act to be against someone's will, but as it's written it seems like if you make a move and are rebuffed, you've just committed a crime. Even if you immediately back off and respect the other person's boundaries, the law seems written broadly enough to make one false step a criminal offense. Sorry, TofuTofu, and sorry to every guy who has ever made a move towards second base and had his hand pushed away -- you're all criminals now.

Lastly here comes Connecticut, which doesn't have a crime specifically designated as rape, but instead just uses various levels of sexual assault, so we're going to pick the highest and lowest degrees:

CT Sexual Assault 1st:

Conn. Gen. Stat. § 53a-70. Sexual assault in the first degree

(a) A person is guilty of sexual assault in the first degree when such person

(1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably c auses such person to fear physical injury to such person or a third person

CT Sexual Assault 4th:

Conn. Gen. Stat. § 53a-73a. Sexual assault in the fourth degree

(a) A person is guilty of sexual assault in the fourth degree when:

(2) such person subjects another person to sexual contact without such other person's consent

Sexual Assault 1 won't apply, again we have the intercourse problem, and in addition there's the requirement of a use of force. Sexual Assault 4? On the face of the law it looks like a move that's rebuffed is enough for a criminal prosecution. However, the law as actually applied in Connecticut goes in the other direction, requiring that the victim communicate her unwillingness (where there is force, the lack of consent is presumed).


So what's the verdict? ...That the people calling this a sexual assault guide are both reading and thinking impaired. Only a tiny portion of the text is even at issue, so it's hardly full of advice on how to rape someone as many critics have claimed. It also requires an insanely wide definition of sexual assault for the advice to be problematic.

"Don't ask for permission" might sound creepy and a little bit rapey, but intelligent people are capable of moving past their gut reactions. The alternative is "Ask for permission" and hey that sounds okay, maybe even ideal, but that's not really the end of it. This is about physical escalation, rounding the bases if you will, so the actual alternative is "Ask for permission before each and every move." That's getting a bit absurd. You got permission to touch her butt with your right hand, okay to presume the left hand is also good? No way! That's "don't ask for permission" territory there! And you'd better get your permission in triplicate before you squeeze. And just to be perfectly clear, the rule TofuTofu's critics are advocating for is "Ask for and receive permission before each and every move," with non-verbal cues off limits. A single miscommunication results in a criminal prosecution.

"Force her to rebuff your advances" is the other phrase really getting people riled up, because it has the word "force" in it. You used force? That's rape! Well, no. If it was "Force her to have sex with you" it would be rape. This is just saying not to sit in escalation limbo waiting for an invitation to move to the next base to arrive on a silver platter. Want to know if you can take third? Rather than waiting for her to tell you (and most people are very hesitant about vocalizing their desires), just go for it and if she's not in to it she'll let you know.

And what do you do if she says stop or pushes your hand away? TofuTofu has some specific advice on that: "stop escalating immediately."

Yeah, that sounds exactly like "a play-by-play description of sexual assault."

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