The West Virginia Supreme Court of Appeals ruled this week that the state’s hate crime law does not cover anti-gay attacks.
At the center of the case is a college athlete, Steward Butler, who has been accused of assaulting two gay men. The ruling allows the courts to try Butler on lesser charges.
Cabell County prosecutors allege that in 2015, Butler was riding in his car with friends when he saw two men kissing on the sidewalk. After allegedly “voicing homophobic slurs” toward the two men, Butler exited the vehicle and punched both of them. One man was allegedly knocked to the ground.
A grand jury indicted Butler on two counts of violating an individual’s civil rights and two counts of battery. He challenged the civil rights charges, which were dismissed after a circuit court concluded “that the word ‘sex’ in the West Virginia legal code was plain and unambiguous and could not be expanded to included ‘sexual orientation.’ Prosecutors took the case to the Supreme Court of Appeals.
In a 3-to-2 ruling, the court ruled that “the word ‘sex’ in West Virginia Code § 61-6-21(b) is unambiguous and clearly imparts being male or female, and does not include ‘sexual orientation.’”
Patrick Morrisey, West Virginia Attorney General, celebrated the ruling.
“The facts of this case are deeply disturbing and heinous, and I remain steadfast in describing the alleged behavior as despicable, but such conduct does not give the judicial system a license to rewrite state law,” said Morrisey in a statement.
“I’m not saying the opinion that the law shouldn’t be changed and neither did the court. But at the time that this occurred, the law of West Virginia did not include that class as protected by law,” said Raymond Nolan, an attorney for Butler.
Critics say the ruling will move the state in the wrong direction.
“At a time when anti-LGBTQ hate violence is on the rise, this ruling reiterates the need to advocate for LGBTQ-inclusive hate-crime laws in all states across the nation,” said Sarah Kate Ellis, CEO and President of GLAAD.