West Virginia Supreme Court Rules That Anti-Gay Assaults Are Not Hate Crimes

The West Virginia Supreme Court of Appeals has ruled that
anti-gay assaults are not covered under the state's hate crime law. 
Photo: Nagel Photography / Shutterstock.com

In a 3-to-2 ruling, the West Virginia Supreme Court of Appeals ruled that anti-gay assaults are not covered under the state’s hate crimes law.

It all began with an attack in April 2015, in which Marshall University running back Steward Butler allegedly attacked two men, Caesy Williams and Zackary Johnson, after he saw them kissing in public. The prosecution’s case hinged on an argument as to whether attacks based on sexual orientation could fall under a hate crime law that does not explicitly mention sexual orientation. 

Butler was subsequently charged with two misdemeanor counts of battery and two felony hate crime counts. The battery charges have not yet gone to trial.

The article in West Virginia Code § 61-6-21(b) was used to form the majority opinion. The article reads as follows:

If any person does by force or threat of force, willfully injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the State of West Virginia or by the Constitution or laws of the United States, because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex, he or she shall be guilty of a felony and, upon conviction, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both. 

“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,’” according to a majority opinion written by Chief Justice Allen H. Loughry II.

Justice Loughry also noted that “[i]t is not for this Court to arbitrarily read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.”

There have been at least 26 attempts to amend West Virginia’s hate crime statute to include sexual orientation, but each of those attempts failed.

Dissenting Justices Margaret L. Workman and Robin Jean Davis said the opinion delivered by Justice Loughry was “overly simplistic and constricted.”

In the dissenting opinion, Justice Workman wrote, “If a man stands on a corner kissing a man and is beaten because he is kissing a man, has he been assaulted because of his sex? Yes, but not simply because he possesses male anatomical parts; rather, the crime occurred because he was perceived to be acting outside the social expectations of how a man should behave with a man. But for his sex, he would not have been attacked.”

The case has been remanded back to the lower court, where Butler will face only the misdemeanor battery charges.