SD v Mythrows 2025 Crim 51
SD v Mythrows [2025] Crim 51
| Date of judgment | 19th May 2025 |
| Judge | Judge Tirado |
| Charges | 1 charge of Second Degree Hate Speech (Article 55a. of the Criminal Code) |
| Verdict | Not guilty of 1 charge of Second Degree Hate Speech (Article 55a. of the Criminal Code) |
| Sentence | |
| Applicable persuasive precedent |
|
JUDGMENT by Judge Tirado
Charges
[1] The prosecution charged the defendant with one (1) count of hate speech in the second degree, and sought a forty-five day mute.
Has the Court in SD v Kadyisme [2025] Crim 9 created new Burdens of Proof?
[2] During the period to discuss evidence, the prosecution brought forth a screenshot of the defendant saying “I hate” statements towards groups of protected characteristics.
[3] The prosecution referenced SD v Kadyisme [2025] Crim 9 [13] to make the claim that these statements of “I hate” are “...rebuttably presumed to be upsetting, demeaning, or humiliating towards that protected group.” The defence makes the claim that due to State of SimDemocracy (Appellant) v Mooklyn (Respondent) [2023] SDSC 7 where “...the judiciary cannot create new requirements for the prosecution to prove because burden of proof and definitions are already outlined in the criminal code, then logically the judiciary also cannot place new burdens for the defense…”
[4] This point raised by the defence begets the question first on if SD v Kadyisme [2025] Crim 9 [13] creates a new burden of proof. While not named, this is in reference to burden of production, where the defence makes the claim that they must produce evidence to demonstrate that the speech was not upsetting et al.
[5] This court is of the opinion that this does create a new burden of production for the defence to prove, due to the new rebuttable presumption that is not found within the criminal code. This is not to say that the rebuttable presumption itself is the issue, but rather that the court has in this ruling created something new for the defence to offer proof of.
Is this in violation of State of SimDemocracy (Appellant) v Mooklyn (Respondent) 2023 SDSC 7?
[6] The prosecution argued that this is not the case, however in this court’s opinion it has. By using the phrase “should rebuttably be considered” this forces the defence to produce evidence that their statements were justifiable, which is not found within the criminal code.
[7] This is not what Article 55a.§6. of the Criminal Code has laid out as the case. While this section does apply to both first and second degree hate speech, the rebuttable presumption only applies to intent, the ruling in SD v Kadyisme [2025] Crim 9 in the opinion of this court has added an additional layer to this, that being that the effect of the speech is rebuttably presumed.
[8] Therefore it is this court’s opinion that SD v Kadyisme [2025] Crim 9 [13] is in fact in violation of State of SimDemocracy (Appellant) v Mooklyn (Respondent) [2023] SDSC 7. It is this court’s opinion that the ruling in SD v Kadyisme [2025] Crim 9 [13] has grafted a new rebuttable presumption onto Article 55a. As was established in [5], this has created a new burden of proof, which State of SimDemocracy (Appellant) v Mooklyn (Respondent) [2023] SDSC 7 [12] explicitly prohibits. For this ruling SD v Kadyisme [2025] Crim 9 [13] will be sat aside.
Is the speech used upsetting, demeaning, or humiliating to those of a protected characteristic?
[9] This court does agree with the prosecution that intent is immaterial for second degree hate speech. Intent is not mentioned once in Article 55a. §2. of the Criminal Code [2020].
[10] Let us assume that being a construction worker was a protected characteristic. “I hate construction workers,” is said by someone, and seen by a construction worker in the SimDemocracy Discord server. A reasonable construction worker would be understandably upset upon seeing such statements lacking context.
Is the speech demonstrated to meet the standards required by the Constitution for a criminal conviction?
[11] The defence maintains that the evidence shown does not meet the standards set by the Constitution. Looking at Article 16 §3.1. in specific,
"§3.1. The existence of offense, or other distress, of another person caused by the exercising of free speech shall not be construed as a violation of constitutional rights of that person, unless such distress is serious, caused in an intentional and malevolent manner, and would also have affected the safety or well-being of a reasonable person."
How this court sees the requirements is as follows:
- 1. Serious distress OR Caused in an intentional and malevolent manner.
- 2. AND have affected the safety or well-being of a reasonable person.
I will preemptively address those who believe it may be an AND in point 1. If this were an AND, the crime of second degree hate speech would not exist.
[12] Let us assume point two has been satisfied. Does the evidence prove either part of point one? This court believes that the evidence provided does not demonstrate either.
[13] Nothing is offered to show serious distress, presumptions of such due to the ruling in SD v Kadyisme [2025] Crim 9, has been set aside, see [8]. In addition, nothing is shown to demonstrate malice on the part of the defendant.
[14] This court does agree with the prosecution that jest is not a defence, and references SD v NovaSM [2019] Crim 3. This has been established time and time again. (See SD v JosephMemestar [2020] Crim 9, SD v Mooklyn [2021] Crim 4, SD v adeacentpear [2025] Crim 14 for just some of these.)
[15] It is this court's opinion, however, that the prosecution has not reached the standard of “beyond a reasonable doubt.” What this court believes is that the evidence shown does indeed demonstrate the defendant saying her “I hate” statements. The evidence does not meet the requirements set by the constitution, although it may have met the requirements met by the Criminal Code. Let us look at Article 16 §3.
§3. No criminal conviction or impeachment shall be made purely on the basis of speech and the exercising of free speech, barring cases where the exercising of such free speech violates or attempts to violate the constitutional rights of other citizens.
As the prosecution has failed to provide evidence that meets the standards laid out by the Constitution, this court is not empowered to perform a conviction.
Other Notes
[16] SD v dominax273 [2025] Crim 7 does not offer persuasive precedent that a defendant’s protected characteristics does not matter in regards to hate speech. In that verdict, the defendant’s race is mentioned once as a summary of the arguments. It is not discussed further. You are instead looking for SD v Kadyisme [2025] Crim 9 [14].
Verdict
[17] This court finds the defendant not guilty on the count of hate speech in the second degree, and offers no sentence.
Citations
<references />