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Court: Anti-Gay Attacks Not Hate Crimes

By William Vogeler, Esq. on May 17, 2017 6:57 AM

The West Virginia Supreme Court ruled that anti-gay attacks are not hate crimes under state law.

Affirming a lower court decision, the high court said the legislature did not include "sexual orientation" in defining people protected from hate crimes. In a 3-2 decision, the judges said the court would not re-write the definition of "sex" in the West Virginia Code.

"Through application of the presumption that the Legislature said in West Virginia Code § 61-6-21(b) what it meant and meant what it said, and based upon the common and plain meaning of the word 'sex,' as well as the Legislature's clear intent, we are left with the ineluctable conclusion that the word 'sex' does not include 'sexual orientation'," Chief Justice Allen Loughry II wrote in State of West Virginia v. Butler.

Two Punches, Two Felony Counts

The case stemmed from an assault by Steward Butler, who attacked two men he saw kissing in public in April 2015. According to police reports, Butler shouted homophobic slurs at the men and then punched them in their faces.

Prosecutors charged Butler with two counts of misdemeanor battery and two counts of felony hate crimes. Butler challenged the hate crime counts before trial, and an appellate court dismissed them.

Resorting to the highest court, prosecutors argued that "sex" could have various meanings in the context of the law. Under the hate crime statute, county prosecutor Lauren Plymale argued, it meant "sexual orientation" when discriminatory behavior is determined to be "because of sex."

Attorney General Patrick Morrisey, who did not join in the case, condemned the crime but warned against judicial revision of the law. He said the attack was "deeply disturbing and heinous," but "such conduct does not give the judicial system a license to rewrite state law."

Define "Sex" and "Sexual Orientation"

Looking back at more than 50 years of cases and legislative acts in West Virginia, the court concluded that the legislature intended to exclude sexual orientation from the hate crimes statute. The court also reviewed similar statutes in every state in the nation, finding that 16 states did not include sexual orientation or gender identity in their hate crime laws.

"This nationwide review of hate crime laws indisputably demonstrates that 'sex' and 'sexual orientation' are being treated as distinct categories," the court said. "Further, the parties do not cite, nor has our research revealed, any reported decisions where the term 'sex' was found to either include or exclude 'sexual orientation' in those states whose hate crimes law lists 'sex' only."

The court also noted that legislators have attempted to amend the hate crimes statute to include sexual orientation protections 26 times since it was first passed in 1987, each of which had failed.

Robin Maril, associate legal director of a gay rights advocacy group, said the West Virginia ruling was not consistent with "the broad legal trajectory we are seeing in the courts" toward including both sexuality and gender identity protections.

"It's very, very troubling with the levels of violence against the L.G.B.T. community to see the West Virginia Supreme Court foreclose this option for victims and prosecutors," she said.

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