SD v MrMises 2020 Crim 16

SD v MrMises 2020 Crim 16

Date of judgment	16th November 2020
Judge	Judge Kangawolf
Charges	1 charge of Hate Speech (Article 72b of the Criminal Code)
Verdict	Guilty of 1 charge of Hate Speech
Sentence	1 year ban
Applicable persuasive precedent	Hate speech does not need to be directed at an individual/individuals; establishes the shooter test, 11 12

Introduction

[1]. The case before me concerns whether hate speech was committed by the accused pursuant to Article 72b of the Criminal Code. The accused and their first lawyer were temporarily banned from SimDemocracy during proceedings due to contempt of court. However, this did not factor into the judgement, nor the fact that the accused was clearly transphobic. The primary issue to be determined was whether hate speech was committed. This was a difficult decision, as both the second defendant and prosecution made compelling arguments.

Precedent

[2]. To my knowledge there have been two prior cases of hate speech in SimDemocracy. The first is SD v Shwiftula 2020 Crim 6 where the accused was found guilty of hate speech under Article 72b for calling an individual a “faggot”. It was held that “the comment in question is made to be upsetting and demeaning” and that it is irrelevant whether as a matter of fact it caused harm.

[3]. The second case (which was cited by the defence) was SD v krystiancbarrie 2020 Crim 14 where a person was found guilty for using the slur “retard” and it was affirmed that definitions of slurs must fit into the protected characteristics outlined by the Constitution. This case was cited by the defence to argue that just as a statement by the accused acknowledging a statement made outside the jurisdiction of SimDemocracy did not amount to hate speech, so to the same interpretation should be applied to the accused confirming his view when accused of finding trans people “disgusting”. I am inclined to disagree with this reasoning. Confirming you believe someone is disgusting as a matter of fact rather than opinion went beyond the earlier statements of the accused. There is also no issue of jurisdiction (as argued by the defence) as the statement was made in SimDemocracy, and the earlier “opinion” that trans people were “disgusting” was also made in SimDemocracy.

Facts of the Case

[4]. The accused made several derogatory remarks in the SimDemocracy server regarding trans people. In no particular order these were:

1: “Ew Trannies” 2: ”If you actually want to completely alter your sex and would dispose of your current genitals to do so, youre disgusting. Thats a fact.” 3: ”We will allow people to spam Tranny in chat And remove the emoji” 4: ”You can be trans as long as im allowed to judge you for it. ” 5: And in response to some saying “You said trans people are disgusting” the individual replied to the third party ”Oh sweety, that was just a fact”.

[5]. These are collectively being considered as a single charge of hate speech. If any one of these statements is found to be hate speech, this will be sufficient to find the defendant guilty. Article 72b section 1 makes it an offence to commit hate speech:

“Whoever publicly submits, posts, relays; or in private messages to another person asks to relay; or in private messages uses hate speech is to be guilty under this Article.” The messages in question were clearly publicly submitted by the accused, and the defence did not dispute this.

[6]. Section 2 states: “Hate speech is to be any upsetting, demeaning, or humiliating speech about someone’s race, religion, disabilty, gender, sex or sexuality.” Speech about trans people clearly falls within the characteristics of gender and identity. Thus, it must be determined if the speech in question was “upsetting, demeaning, or humiliating about trans people”.

[7]. Gender and sex are both classed as protected characteristics pursuant to Article 12, section 2 of the Constitution. Therefore sections 1.1 and 1.2 of Article 72b of the Criminal Code will apply. These sections state:

“§1.1. A slur shall be defined as any derogatory or insulting term applied to a group of people classed by a protected characteristic. §1.2. Referring to someone as a slur falls under the definition of hate speech."

[8]. It is common knowledge that “tranny” is a slur towards trans people, and therefore if the accused directed his slur of “tranny” toward an individual, the alleged hate speech of 1 and 3 in 4 will be satisfied to find a verdict of guilty.

[9]. Cases 2, 4 and 5 at 4 were also clearly instances of upsetting, demeaning, or humiliating speech. These were not mere expressions of ideas, invitations of discussion nor expressions of intent to form a party. Each case was merely an expression of disgust and likely ill will toward trans people.

Shooter Test

[10]. The main issue in this matter is whether a specific individual must be targeted for there to be hate speech under Article 72b. To quote the closing statement of the prosecution:

“The definition of hate speech requires that the speech be about "someone." Therefore, of course, we would not allow someone to make hateful speech towards an individual member or members of SimDemocracy, or individuals outside of SimDemocracy or public figures. The question, however, is whether hate speech against a group falls under the definition of speech against "someone." I argue that speech about a class of individuals broadly is quite clearly speech about "someone," as it is speech about many people. Broad speech about a class of individuals can be just as upsetting, humiliating, or demeaning as speech directed at a specific individual.

If we fail to consider broad speech about a class to be applicable as hate speech, it would effectively cripple the ability of the crime to stop the behavior that I believe is its intent to stop. For example, it would allow situations such as a hypothetical one in which someone finds out another individual is transgender and then proceeds to make hateful statements about transgender people in a broad sense in front of them, greatly upsetting the victim, while the perpetrator would be completely innocent.”

[11]. As a general rule, I am inclined to agree that Article 72b ought to be interpreted broadly. A single slur in and of itself, when not directed at an individual, will not in my view amount to hate speech. But where there are continued uses, it seems prudent to interpret it as targeting a group of individuals. I would draw upon the example of someone who pulls out a gun in a crowded building, closes their eyes and repeatedly fires their gun in all directions. The fact that they may not have intended to hit a specific target is irrelevant. Their conduct is so reckless that no one would question they committed grievous bodily harm or murder if someone were to be killed by their actions. In much the same way, repeated instances of hate speech not directed at any specific individual will shock no one to be so reckless as to cause harm to others around them.

[12]. Although the prosecution brings a single charge of hate speech, factually this single charge extends to multiple acts of hate speech. Therefore, I cannot make any other conclusion than that as a matter of fact the accused did commit multiple acts of hate speech that, while not directed at a specific individual, were conducted with such recklessness as to make this redundant.

Verdict

[13]. I find the accused guilty of one charge of hate speech pursuant to Article 72b of the Criminal Code. He is sentenced to a 1 year ban. Due to it being a leap year, this amounts to a ban of 366 days. The reason for the maximum penalty is due to trans people being an especially vulnerable group to suicide, and the accused’s repeated use of derogatory language warrants a sentence that demonstrates to the members of the community affected by this hate speech to know that as a community we will protect our most vulnerable.