SD v Extraditz 2025 Crim 40
SD v Extraditz [2025] Crim 40
| Date of judgment | 12th April 2025 |
| Judge | Justice Ivy Cactus |
| Charges | 1 charge of Sexual Harassment (Article 54 of the Criminal Code) |
| Verdict | Guilty of one count of Sexual Harassment |
| Sentence | One year ban |
| Applicable persuasive precedent |
|
JUDGMENT by Justice Ivy Cactus
Introduction
[1] The defendant is charged with sexual harassment for posting a video of a hand “which was deliberately captured to resemble a bare male phallus and buttocks, captured from behind.” For such, the state seeks a ban of one year.
Procedural Questions
[2] At the beginning of evidence presentation, the court directed the Prosecution to “ping the defense at the end of each exhibit to allow for cross examination.” The prosecution did ping the defendant, but they did not give them sufficient time to write their cross examination.
[3] Given the asynchronous nature of the trial this oversight, while it did violate the text of the Courtroom Procedures Act, did not have a significant effect, if any, on the integrity of the proceedings and the outcome of the trial.
[4] Thus, under the principle of procedural leniency outlined in the binding precedent Ivy Cactus, ex parte Dick_head68 (Appellant) v State of SimDemocracy (Respondent) [2020] SDSC 9, no mistrial was declared and proceedings continued as normal. In the future the court will endeavor to be clearer in its instructions to counsel.
[5] On another note, the prosecution motioned to subpoena witness “Wilfur” in pre-trial, which was accepted by the Judge Ben. During trial, however, the prosecution used statements by said witness as evidence. Both parties, in turn, thoroughly analyzed and cross-examined said statements. The court, in the interest of judicial efficiency, asked the prosecution if they still believed it was necessary to bring the witness to the stand. The prosecution, in turn, decided to waive said testimony.
- [5.1] The court thanks and commends the prosecution for their respectful consideration of the court’s time, especially in light of the backlog the judiciary is currently facing.
[6] The prosecution, during pre-trial, also tried to subpoena the user “mbh” to give an interpretation of the image and the law, arguing that he was a “reasonable person”. The pre-trial judge, Ben, dismissed this given that “'The reasonable person' standard refers to a hypothetical person created in the court's imagination”. The court agrees with this interpretation, and dissuades parties from using such an argument in future cases.
[7] The court will also clarify, as always, that under the precedent set in Nighteye (Appellant) v LordDeadlyOwl (Respondent) [2020] SDSC 5 it can not consider arguments not raised to it by the parties during trial.
Definitions
[8] This is the first case that has gone to trial for Sexual Harassment since the Senate, in the “Explicit Materials Inside this Document Amendment”, raised the standard for Sexual Harassment from “sexually suggestive” to “sexually explicit”.
[9] The prosecution, in their opening statements, proposed the use of the dictionary definition of explicit: “(a) fully revealed or expressed without vagueness, implication, or ambiguity : leaving no question as to meaning or intent.”
[10] The defense, when prompted, agreed to said definition. Later on during their argumentation, however, they raised the definition of “explicit materials” as stated in the Discord Community Guidelines.
[11] The court, seeking clarity, asked both parties which definition they preferred. The prosecution argued for the original definition they used, to which the defense agreed, stating they simply wanted to use said discord definition to illustrate the line between sexually explicit and sexually suggestive material.
[12] Despite both parties agreeing to the dictionary definition, there were ambiguities in how simply applying the dictionary definition of explicit to the word “sexually” would work, given the multitude of terms used to describe explicit (i.e. “without vagueness, implication, or ambiguity”). The court, in order to give a consistent standard for both parties to use and, almost ironically, to make the definition more “explicit”, directed counsels to reference “sexually explicit material” as "Content that the reasonable person would recognize as directly and unambiguously sexual”.
- [12.1] The court believes this definition to be relatively comprehensive and robust, and would advise its use in future proceedings in order to ensure judicial consistency and equal application of the law.
Summary of the Prosecution’s Arguments
[13] The prosecution opened by showing the thumbnail of the video and arguing that it contains an unambiguous depiction of a man’s buttocks and genitalia, and that since no interaction was needed to see said image everyone in general chat was subjected to it.
[14] They, then, argue that although once you click on it the image is quickly revealed to be someone’s hand, “the crime of sexual harassment was committed when the defendant submitted the video with such an obscene thumbnail.” In short, they posit that the thumbnail itself constitutes Sexual Harassment independent of the content once the user clicks through.
[15] Finally, they submit testimony by witness Wilfur, who states that the image made them feel uncomfortable before they realized that it was actually a hand because it “Straight up looked like a penis”.
[16] In total the prosecution’s arguments can be summed up as “the reasonable person, when viewing the thumbnail alone, would recognize it as an unambiguous depiction of sexual material”.
Summary of the Defense’s Arguments
[17] The defense’s argument rests on the idea that the video is merely sexually suggestive, as it is “open to interpretation,” and as such does not meet the heightened standard of “sexually explicit”.
[18] They also argue that subjective discomfort on witnesses’ parts does not equate to objective explicitness.
How the Facts Apply
[19] The court gave the standard of “Content that the reasonable person would recognize as directly and unambiguously sexual,” which is made up of two fundamental parts:
- [19.1] A representation of a sexual act or body part and,
- [19.2] No reasonable alternative interpretation of the content.
[20] First the court would like to address the witness testimony, wherein the prosecution argues that the image made “Wilfur” uncomfortable. The defense raised that this is irrelevant to the charges, to which the court agrees. Neither the wording of Article 54 nor the court’s definition of “Sexually Explicit” require someone to be made uncomfortable. This piece of evidence is therefore irrelevant and will not be considered further.
- [20.1] Likewise, his opinion on whether or not the content was “actually sexually explicit” is irrelevant, evidence that is simply a layman giving their opinion on how the facts apply to the case is not evidence at all.
[21] Another major point of contention was whether the thumbnail of the video could be taken alone as “sexually explicit content”. The prosecution argued that it should be, the defense, however, believes that “Since the video itself does not contain explicit content, the prosecution's reliance solely on the thumbnail fails to meet the legal standard for sexual harassment.”
[22] The court sides with the prosecution on this point, the thumbnail stands alone as an image when a video is posted. A thumbnail can still be sexually explicit even if the video that hides behind it is not.
- [22.1] To give an example, imagine a video was posted that had an actual photograph of a penis as a thumbnail, but when clicked on the video it was a normal run-of-the-mill cat video. No reasonable person would claim that said video thumbnail was not sexually explicit because the video that hides behind it is not.
- [22.2] It is not the case that the prosecution isolated a single misleading frame from a larger video to make their case — the image shown was the one presented to every user who scrolled through general chat. It was the sole impression anyone who chose not to click on the video received; it was content in and of itself.
[23] The court will first, then, decide whether the thumbnail meets the definition of “directly sexual.”
[24] The prosecution argues that a depiction of a penis would be considered by any reasonable person to be directly sexual, to which the defense does not give any real objections.
[25] The court agrees, the thumbnail clearly resembles a penis as seen from someone behind and slightly beneath a naked person, that is a direct representation of a sexual body part.
[26] The final question, and the most contentious one, is whether the thumbnail is “unambiguously sexual”.
[27] The prosecution posits that it does not matter “whether the image was, in a technical sense, a phallus or a hand,” but instead something being unambiguously sexual rests solely on if the reasonable person would interpret it as such.
[28] The defense refutes this directly, arguing that because the thumbnail image was, in reality, a depiction of hand the material can not be “sexually explicit”, but, at most, “sexually suggestive”.
[29] The court sides with the prosecution. Something need not be a photograph of genitalia to unambiguously depict it. Drawings of genitalia are still sexually explicit, a clay model of genitalia would still be sexually explicit, and, yes, even a convincing enough hand-puppet can be sexually explicit.
[30] Given this, the court finds that no reasonable person would, seeing the thumbnail, recognize it as anything other than a depiction of male genitalia.
[31] This means that the thumbnail of the video has met both parts of the court’s definition of sexually explicit.
Verdict
[32] The defendant is found to be guilty of Sexual Harassment under Article 54 of the Criminal Code.
[33] Given the relatively benign nature of the offense, the defendant is sentenced to the statutory minimum of a one-year ban, effective immediately.
Postscript
[34] Any and all decisions of law made by the court can be appealed to the Supreme Court.
Citations
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