SD v Pasha 2021 Crim 3
SD v Pasha 2021 Crim 3
| Date of judgment | 30th January 2021 |
|---|---|
| Judge | Chief Justice Ivy Cactus |
| Charges | 1 charge of Hate Speech (Article 72b of the Criminal Code), 1 charge of Resisting Arrest (Article 28b of the Criminal code) |
| Verdict | Guilty of one count of Hate Speech Guilty of one count of Resisting Arrest |
| Sentence | 6 week ban |
| Applicable persuasive precedent | Motions for extension of arrest can not be used as a writ of release, 5 Religious beliefs are not proper justification for committing Hate Speech, 9 Leaving the server to remove the “in custody” role is Resisting Arrest, 17 |
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JUDGMENT by Chief Justice Ivy Cactus
Introduction
[1]. The Defendant is charged with 1 count of Hate Speech for a multitude of statements allegedly deriding homosexuals, and others of the like. They are also charged with 1 count of Resisting Arrest for allegedly leaving the Simdemocracy server to remove the “in custody” role.
Procedural Questions
[2]. During pre-trial there was a motion from the prosecution to extend the defendants arrest. They claimed that due to the defendant’s targeting of minorities directly his release could cause great harm.
[3]. The defendant argued that they did in fact not make any homophobic statements, and other statements pushing their innocence of all charges.
[4]. I will detail my reasoning to accept this motion, even though it is unnecessary to do so, so that there may be an official record and precedent for this type of motion.
[5]. In essence I accepted the motion due to the fact that they are being charged with a crime against decency, and with Resisting Arrest. Both of these charges are relevant to extension of arrest, due to possible harm caused and attempts to escape prior arrest respectively. However, I did not look at the validity of statements made by either side beyond this, this is due to the state having means to challenge an arrest, that being a writ of release, so I did not have the authority to decide on the merits of an arrest until such was filed.
[6]. The prosecution also motioned for subpoena of message records in #holding-cell, which was accepted with the exception of if the prosecution was given access to the channel, which they did.
[7]. Finally, I’d like to note to everyone who may be reading this that the inferior courts don’t have the ability to contemplate arguments not raised to it, as established under Nighteye (Appellant) v LordDeadlyOwl (Respondent) 2020 SDSC 5, and I will not be doing so here.
Hate Speech
[8]. The prosecution opens by presenting evidence of the defendant stating they don’t support homosexual people, evidence of which would be presented multiple times. Such as a case in response to a PDF labeled “Why Homosexuality should be Prohibited”. They state that such statements are demeaning to homosexuals.
8.1 The defendant argues that they are merely saying that homosexuality should be prohibited in Islam, and therefore irrelevant to broader crimes such as demeaning homosexuals.
8.2 The prosecution responds by saying that it is irrelevant to the case in hand if it was targeted towards Muslims, it’s still demeaning to homosexuals.
[9]. The court agrees with the prosecution here, to state that one doesn’t promote, or support, homosexuals. These type of statements are clearly demeaning or upsetting to homosexual people. Article 72b does not give an exception based on religious beliefs, so these statements are irrelevant.
[10]. The prosecution then promotes evidence of the defendant stating that “we” should convince gay people to not be gay. The prosecution likens it to supporting conversion therapy, something that is demeaning and upsetting to homosexuals.
10.1 The defendant apologizes, stating that they worded it poorly. They follow this by saying that they simply believe homosexuality is unnatural.
[11]. The court once again sides with the prosecution on this question, statements supporting conversion therapy or changing the sexuality of gay people, especially because being homosexual is “unnatural” is clearly demeaning to gay people.
[12]. The final piece of evidence provided is a reply to someone calling the anti-gay PDF mentioned above BS, due to this document supporting anti-homosexuality topics, especially lies about about gay people being sex offenders.
12.1 The defendant follows this argument up by asking how the document lied. To which the prosecution clarifies where it’s wrong and why. The defendant then thanks the prosecution for letting them know.
[13]. The court doesn’t really believe this piece of evidence can be used to prove that the defendant committed Hate Speech, since it does seem the defendant was legitimately ignorant on the topic.
[14]. The court finds that all of this together clearly shows a pattern of anti-homosexual messaging, much of which is either upsetting or demeaning towards gay people. Therefore, the defendant is found guilty for Hate Speech.
Resisting Arrest
[15]. The prosecution then provides evidence of the defendant repeatedly leaving the server while they were in custody, this was clearly means of subverting or circumventing their arrest, and therefore a violation of Article 28b.
15.1 The defendant then admits that they did in fact due so, attempting to justify it by saying they didn’t want to wait for the AG to come online, and they wanted to prove a point.
[16]. The defendant clearly and by their own admission left the server to remove their “in custody” role and circumvent their arrest, therefore they are guilty of Resisting Arrest.
Verdict
[17]. The defendant is found guilty on one count of Hate speech, and sentenced to a one month ban due to repeated and severe cases of demeaning gay people.
[18]. The defendant is also found guilty on one count of Resisting Arrest due to leaving the server to get out of custody, and sentenced to a 2 week ban.
[19]. These punishments shall take place subsequently, and go into effect immediately.
