SD v thesigmasquad (Remanded) 2025 Crim 38
SD v thesigmasquad (Remanded) [2025] Crim 38
| Date of judgment | 7th September 2025 |
| Judge | Judge Benbookworm |
| Charges |
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| Verdict | Not guilty |
| Sentence | N/A |
| Applicable persuasive precedent |
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REMANDED JUDGMENT by Judge Benbookworm
Introduction
[B1] This case was remanded to me on 11 June 2025 regarding the second charge of SD v thesigmasquad [2025] Crim 38 from 13 April 2025, noting that the judge erred considerably on the application of the Reasonable Person Test used in the determination of Charge 2.
- [B1.1] On 12 June 2025, I certified a question to the Supreme Court, and stayed the remanded proceedings, mistakenly believing they would respond speedily and in good faith. A few days ago and without notice to the trial court, the docket was updated to reflect a declination to respond. It is now nearly five months after the original verdict.
- [B1.2] Leaving me with no guidance whatsoever, I interpret the lack of response as tacit acceptance that even the maximally radical options listed therein are not beyond the pale. Else, the Supreme Court would have acted as quickly as they did for In re Writ of Prohibition - Lucas v Department of Justice [2025] SDSC 27. Among the concerns raised was the questionable validity of SD v Mythrows [2025] Crim 51 in appearing to overrule In re Restraining Order Act [2019] SDSC 1 by finding that expression other political and religious speech are protected by the Constitution, and whether the entirety of the crime of obscenity is swallowed by the higher constitutional requirements.
Summary of facts
[B2] The prosecution pursued a charge of obscenity for the defendant posting a meme that included two young anime girls and a caption “kys = kiss your sister”. The prosecution concedes that the purple dotted heart may be interpreted as a non-intimate usage of it, but indicated that the one of the depicted characters comes from a visual novel where they are a high school student (likely to be under 18).
- [B2.1] The defense argues that “kiss your sister” is not sexual, and that the content of the referenced source is not sexual in nature either. The prosecution did not submit evidence to support a visual novel as the source of the depicted characters, and such is not something I am permitted to take judicial notice of.
- [B2.2] The defense also posits that the caption is also less harmful than the usual initialism of “kys” as “kill yourself”. As neither the original judge nor the Supreme Court commented on such, I will not consider it further.
[B3] Regarding the attire of the depicted girls, their clothing covers more than would be covered by a standard swim suit. Contemporary standards and the average SimDemocracy user would not object to such a portrayal of even a young person. Much the same as the original judgment, I will focus on the interpretation of the text in the gif.
Summary of relevant statutory and case law
[B4] The relevant text from Criminal Code is whether the content posted was “not suitable for viewing in a public place, and would cause distress to a reasonable person”.
[B5] The relevant text from the Constitution regarding the freedom of expression: “No criminal conviction or impeachment shall be made purely on the basis of speech… 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.”
- [B5.1] SD v Mythrows [2025] Crim 51 [11-15] expounds on the interpretation of this article. Note especially [15]: “The evidence does not meet the requirements set by the constitution, although it may have met the requirements met by the Criminal Code.”
- [B5.2] This is a higher barrier than that of the Criminal Code, as the distress caused must be serious.
[B6] The reasonable person test was initially established in SD v Kamray23 [2020] Crim 5 [9-11], and affirmed by In re 38th Presidential and 38th Senatorial Elections [2020] SDSC 10, SD v Extraditz [2025] Crim 40, and the source of this remanded case.
- [B6.1] In SD v Extraditz [6], the court said that the reasonable person standard “refers to a hypothetical person created in the court's imagination”.
- [B6.2] In SD v Kamray23 and ex parte TheSigmaSquad, the reasonable person is defined as “the average SimDemocracy user”. This is worth noting, However, despite most internet communities being heavily American-centric, SimDemocracy has a very global user base, not all of whom ascribe to puritanical norms.
- [B6.2.1] The lack of clarity here has also been raised in SD v fortnitewfortnitew [2025] Crim 117 [12.1], because the average chronically online teenager is definitionally not a reasonable person.
[B7] The reasonable person test regarding NSFW content in particular was developed by In re Toastdick Emoji [2020] SDSC 17 [12-15.1], where the Supreme Court found that mild NSFW content includes where a “reasonable person would become ‘uncomfortable’ or ‘run into issues in real life’” and that an example would be a “very graphic object with little to no context”.
Considerations
[B8] The original court erred in jumping directly to whether the caption “kiss your sister” was “incestuous”, without due heed to the statutory and constitutional text.
[B9] While being understood at minimum as a symbol of affection, a kiss would not be inappropriate for public view. The average SimDemocracy user would refer to such a public display of affection as “cringe”, but not as a cause of (serious) distress.
- [B9.1] In this instance, the inclusion of “your sister” does not change this evaluation. The users of SimDemocracy come from diverse nations, including in cultures where it is appropriate to greet everyone with a handshake and a kiss<ref name="bible">If you insist on conservative “biblical” values, I point you to at least four verses where the King James Version of the New Testament instructs you to greet others (including “thy brethren”) with “an holy kiss”: Romans 16:16; 1 Corinthians 16:20; 2 Corinthians 13:12; and 1 Thessalonians 5:26.</ref>.
[B10] Charging obscenity under the Criminal Code occupies an interesting niche in our law. As with all criminalized speech, the offense must extend beyond that which is constitutionally protected. But it likewise follows that it would be charged when the prosecution feels less confident about charging for a violation of the Terms of Service; which can merit a summary ban without trial. I have a unique insight into these distinctions, as the judge that has certified 13 out of 14 summary bans under the Protecting Our Online Peace Amendment, and a similar supermajority of certifications under the previous Guaranteeing Equal Enforcement of the Terms of Service Act 2025. The presented offense does not compare in severity to such wholly unprotected speech.
[B11] Taking the definitions of NSFW content from In re Toastdick as a guide, that which is not even “mild NSFW” is safe for work, and definitionally suitable for viewing in a public place. In [15], the court ordered the removal of the previous toastdick emoji as very graphic, crudely drawn genitalia not reasonably seen as humorous, and likely to result in real life issues if seen on someone’s screen. In contrast, the image and text in this case subvert expectations but are very unlikely to result in the average SimDemocracy user feeling uncomfortable and at risk of real world consequences.
[B12] There is reasonable doubt that the message causes serious distress, that it was done malevolently, and that it would affect the well-being of the average SimDemocracy user.
[B13] There is reasonable doubt that a message with the text “kiss your sister” would be rejected by the average SimDemocracy user as unsuitable for the public.
Verdict
[B14] The charged conduct is constitutionally protected speech. The original guilty verdict on Charge 2 was incorrect, and the verdict is expunged. Note, the defendant remains banned by the sentence in Crim 22, and is not to be released.
Postscript: rebuke of the Supreme Court
<ref name="sever">This section is severable. If any portion is found to be invalid, the rest shall remain valid to the maximum extent possible.</ref> [B15] In response to changes in popular opinion regarding the favorability of the Supreme Court, the five right honourable God-Kings (may they be exalted forever) have acted as petulantly as the Senate they so vehemently decry, in malicious compliance of demands to address their backlog through arbitrary and capricious denials of all petitions before them.
[B16] In abdicating their ability to weigh in prior to this judgment, the Justices have tacitly accepted that even the maximally radical options listed therein are not beyond the pale. They are estopped by silence. Nevertheless, I have exhibited restraint in this judgment; my reasoning is backed up by law at every point.
[B17] In re Writ of Prohibition - Lucas v Department of Justice [2025] SDSC 27 [15] reads in part:
“Courts should, of course, always err on the side of justice when they are unsure what powers they possess in resolving a matter within their jurisdiction.”
Justice requires that remedies be available when petitions are made.
[B18] In re Writ of Prohibition is likewise notable for the incredible speed at which it was issued, despite no petition filed, no arguments heard, and the Supreme Court not actually presenting any disagreement on any merits decided by the judge.
- [B18.1] I intend to provoke the same here.
[B19] In Article 27, we find the singular most foundational right in the Constitution, our noble simulation would not exist without it:
§1. Every person shall have the right and duty to revolt against tyrannical government seeking to abolish the democratic and constitutional order, when all other remedies have been exhausted.
[B20] All other remedies have been exhausted. It is my duty to revolt. If the God-Kings strike me down, let this galvanize others.
Ave SimDemocracy
Footnotes
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