SD v Dickhead68 2019 Crim 8
SD v Dickhead68 2019 Crim 8
| Date of judgment | 14th December 2019 |
|---|---|
| Judge | Justice Danyo |
| Charges | 1 charge of Harassment (Article 10, s2.5 of the Criminal Code) |
| Verdict | Guilty of 1 charge of Harassment |
| Sentence | 24 week ban |
| Applicable persuasive precedent |
JUDGMENT by Justice Danyo
Introduction
[1]. On the 1st December 2019, the State of SimDemocracy formally indicted /u/dickhead68 on charges of harassment. On the 4th December 2019, the defendant plead not guilty to this charge in his pre-trial.
What exactly is harassment?
[2]. Admittedly, this question was a lot harder to answer than it should’ve been. Harassment, as a criminal offence, generally is derived from two sources, the Criminal Code (“CC”) and the common law. Arguably, there is also civil harassment which, as I understand it, is sourced entirely from the common law. However, the discussion of whether it exists, whether the common law has been historically misapplied, or to what extent it plays is outside the remit of this case.
[3]. Harassment is criminalised under Article 10 s2.5 of the CC, which prohibits “content that threatens, harasses, or bullies or encourages others to do so”. While Article 10 generally refers to the provisions within the Terms of Service (“ToS”) and the definitions stipulated under it, s1.1 allows for the enumeration of certain criminal offences under the umbrella term of “breach of ToS”, and gives way for the statutory and common law to develop on these specific offences. The definition of harassment, which comes from the common law, is “the repeated and unwanted bothering, threatening, or anything along those lines by one or more users to one or more users even after being asked to stopped” per /u/lolcheapboosts, /u/NovaSM v. /u/dickhead68 (cr.3, t) 19.07.12[1]. Common law harassment was then advanced further (but it wasn’t overturned), with the addition of the principle that “harassment is not equal to being annoying”, per /u/catiecat123, State of SimDemocracy v. /u/dickhead68 (cr.1, t) 6.10.19[2].
[4]. Generally, crimes have two elements. They have an actus reus (“guilty act” in Latin) and a mens rea (“guilty mind” in Latin) element. The actus reus is the action of the crime and is usually objective (e.g. in real life, the actus reus of murder is usually unlawfully causing someone’s death). The mens rea is the mental state of the accused and is subjective, meaning it is debatable, as we could never know what the accused’s state of mind was when they did something (e.g. for murder, the mens rea is usually is the intention to kill). In order for someone to be convicted of a crime, the prosecution generally have to prove both the actus reus and mens rea elements beyond a reasonable doubt. If one of these elements can’t be proved beyond a reasonable doubt, it is a general rule of thumb that the accused is innocent of that charge (e.g. if the accused killed someone, but it wasn’t intentional, it isn’t murder, although it can be classified as manslaughter). There are, of course, exceptions. Not every crime has both actus reus and mens rea elements. Crimes with just actus reus elements are known as “strict liability offences” and real life examples include driving a car without insurance.
[5]. An offence under Article 10 of the CC only requires someone to commit “an act that breaches the terms of service”, which is an actus reus element. Likewise, the common law definition of harassment only requires “the repeated and unwanted bothering, threatening ... to one or more users”, which is only an actus reus element. No mens rea element has been established for harassment. In other words, if the accused repeatedly bothers someone, they’ve committed the crime of harassment. It is irrelevant as to what the intention of the accused was; as long as the actus reus has been established beyond a reasonable doubt, the accused is guilty of that crime. As such, harassment is a strict liability offence.
[6]. I preside over this case, not as a Supreme Court justice, but as a standard judge. As such, my job is merely to apply the common law and precedent that has been bound on me. I do not have the authority to set, or advance the common law as a standard judge, but merely to interpret and clarify it. Whether the characterisation of harassment as a strict liability offence is fair or just is not under my remit. In my opinion, there is absolutely valid grounds for appeal to the Supreme Court on the basis that criminal harassment is classified as a strict liability offence, something that usually requires good (and dare I say, extraordinary) justification for doing so.
Regarding court procedure
[7]. Court procedure plays a fundamental role in upholding every person’s constitutional right to a fair trial. If court procedure has not been properly adhered to, there can be no fair trial. This is why the Trial and Pre-Trial Procedures Act (“Procedures Act”) allows judges to give the verdict of a “mistrial” in the case court procedure is not properly adhered to. During the proceedings of this trial, there were multiple events which concern court procedure.
[8]. During the trial, the defendant shuffled their legal counsel team around, dismissing and appointing new counsel to represent them. This was entirely consistent with their constitutional rights (see Article 22, s4 of the Constitution).
[9]. During a short period when the trial was declared in absentia, the defendant was entirely unrepresented as they had dismissed their legal counsel and physically left the server. On the appointment of their new legal counsel, the defence lawyer, Ivy Cactus, asked for a 15 minute recess to review the points made. I adjourned the court accordingly and I allowed the defence counsel to cross examine any evidence admitted during this brief period, making all evidence submitted accounted for and admissible.
[10]. During the trial, the defendant attempted to plead guilty to the charge. The Procedures Act does not contain statutory provision to allow defendants to plead guilty mid-trial. It would be improper for me, sitting as an ordinary judge, to lay down the foundations of common law regarding court procedure as it isn’t within my remit. The defendant’s plea has, and is interpreted by me as a question for the court, and not an admission of guilt itself, thus not constituting self-incrimination.
[11]. Therefore, while some of these events were novel, none of them were procedurally irregular or erroneous to warrant a “mistrial” verdict.
Summary of prosecution arguments and objections
[12]. The first evidence presented was a screenshot showing the defendant asking the first victim, Comstock (“V1”), various iterations of whether V1 wished to be the defendant’s lawyer. The evidence shows that the word “lawyer” being used 15 times in this manner. 5 of these incidents happened after an explicit warning by V1, who warned, “tell dickhead that if he asks me to be his personal lawyer one more I’ll sue him for harassment”. A total of 11 pings were made, 5 of which were made after the explicit warning. The prosecution argues that statements V1 made, which include, but are not limited to “stop fucking spamming”, “just fucking stop for fucks sake”, “Fuck off dh”, and “please shut the fuck up” constituted as multiple warnings issued by the victim to the defendant to stop their actions, thus fulfilling one of the requirements of harassment (“... by one or more users to one or more users even after being asked to stopped”). The prosecution also argues that the multiple warnings issued by V1 constituted “unwanted bothering”, which fulfils the other requirement of harassment (“the repeated and unwanted bothering ...”). The defence argued that as the events took place over multiple times, this did not constitute annoyance or bothering. The defence also points out that in certain cases, there were larger gaps of time, including in one incident where the gap was over 71 hours, which the defence argues is “deemed a proper amount of time to stop after being asked”.
[13]. The defence also argued that the defendant genuinely wished for V1 to be his lawyer. They argued that V1 replied “rudely and with aggression multiple times” which confused the defendant. They therefore concluded that asking “why were you my lawyer” three times was entirely reasonable.
[14]. The prosecution presented testimony from NovaSM (“V2”), another alleged victim of harassment by the defendant. In the testimony, V2 claimed that “Dickhead has harassed me excesively in the past and has caused me annoyence in recent times (sic)”. This testimony was uncontested by the defence.
[15]. The prosecution then presented testimony from benitfeet (“V3”), another alleged victim of harassment by the defendant. In the testimony, V3 stated that he was spam pinged by the defendant, including after “a written warning of a suit”.
[16]. The prosecution then made an argument that the defendant has had a history of harassment in the past, both being charged of it, and being convicted of it. The defence, however, noted that in some cases, the defendant was acquitted of the charges, having been “falsely charged before”. The defence also argue that the “pattern of behaviour” allegedly exhibits does not automatically mean the “present charges hold water”. The defence also argued that while the defendant “was once an avid harasser”, the past harassment cases involving the defendant show that there were signs of behavioural improvement as he was being charged of harassment less over time, and therefore dispute the claim by the prosecution that the defendant displayed a “pattern of behaviour” in regards to harassment.
Summary of defence arguments and objections
[17]. The defence argues that the definition of harassment that should be used instead is “unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information”. The prosecution makes a counter-argument that it adds unnecessary qualifiers, leading to potential “woefully inadequacies” in the law, and that harassment is already defined under the common law. The defence proceeded to justify the definition, which originates from United States law, while the defence made counter-arguments as to why the definition was inadequate.
[18]. The defence also argues that the victims could’ve blocked the defendant, which would have avoided the issue entirely. The prosecution objected by pointing out the technicalities to which that argument was derived. The prosecution also pointed out examples of where the defendant circumvented the block. They also made a counterpoint in that harassment in a public forum, even when the victim has blocked the defendant, could end up encouraging further harassment depending on how spectators perceive such an event. As such, they argue that it would be “unreasonable, and dangerous, to ask victims to ignore harassment”.
Examining the arguments
[19]. The prosecution's initial arguments, at 12, were thoroughly backed by well catalogued evidence. The defence that the events took place at different and various times was unconvincing. The actus reus element for harassment requires that such events are “repeated and unwanted”. The prosecution has presented evidence to prove that such events were indeed repeated and unwanted, showing multiple messages being sent in close proximity of time, thus establishing a pattern. The “71 hours” defence required a contorted view of /u/catiecat123’s judgment, as the defence assumed it was an absolute rule that was applicable for every case, as opposed to a very specific gauge for a very specific case and circumstance. Furthermore, the prosecution pointed out cases which happened within a smaller window of time than 71 hours.
[20]. The defence’s counter-argument, at 13, that the defendant had genuine intent in asking whether V1 wanted to be their lawyer has been rejected on the ground that harassment is a strict liability offence which has no mens rea element. Whether the defendant intended to harass or not is not relevant, as long as the end result is the victim being harassed. If we suppose that intent to harass was the mens rea required (which it isn’t, but for the absolute benefit of the doubt we’ll consider this circumstance), it still wouldn’t be convincing. As the prosecution pointed out, firstly, the reasonable person would understand the inferences made by such negative responses as “bothering questions”. For the argument to hold, the defence would have to prove (and to clarify, for defences the evidential burden of proof lies within the defendant, e.g. pleading insanity) that the defendant genuinely lacked the “social skills and empathy” to understand the strong inference, and such arguments would be undermined by the fact that this was not an isolated incident, but rather an offence that the defendant has committed in the past. Secondly, V1 made an explicit warning to the defendant that he’ll be sued for harassment. The defendant ignored this warning, which firmly established his intentions were not to genuinely ask for help, but to torment and harass the victim.
[21]. The prosecution’s argument, at 16, that the defendant had a past history of harassment is not admissible. As the defence noted, the argument of “pattern of behaviour” does not mean the “present charges hold water”. Guilt can’t be inferred due to past actions and convictions. What can be argued is that the conviction should be harsher for past offences, using the principle of “repeated offences warrants greater sentencing”, per Danyo, /u/NovaSM v. /u/dickhead68 Ap. (cr3) 17.7.19[3]. The behavioural improvement counter-argument by the defence has, however, been rejected as the prosecution has demonstrated that the defendant, upon gaining greater authority, began renewing his harassment, with one case that “took the defendant 12 days before he was released from his sentence” to begin harassing V1.
[22]. The defence’s argument, at 17, that we should reconsider the definition of harassment has been rejected. Harassment has already been defined under the common law, and sitting as a standard judge, I have no power to overturn precedent that is bound on me.
[23]. The defence’s argument, at 18, has also been rejected. The prosecution has made a compelling case for why we shouldn’t shift the burden on the victim to avoid being harassed. This is a form of victim blaming and is inadmissible as an argument.
Verdict
[24]. The prosecution has proven beyond a reasonable doubt that the defendant committed harassment against multiple victims. Therefore the court finds the defendant, /u/dickhead68, guilty of harassment under Article 10, s2.5 of the Criminal Code.
[25]. As proven by the prosecution, the defendant has exhibited a “pattern of behaviour” in regards to harassing victims. As under /u/NovaSM v. /u/dickhead68 Ap. (cr3) 17.7.19[4], precedent affirmed the principle “that repeated offences warrants greater sentencing”. As such, a greater sentence must be handed down.
[26]. The defendant shall be banned for 24 weeks.
