No Hate Crime Protections in West Virginia

West Virginia Attorney General Patrick Morrisey. | WV OFFICE OF ATTORNEY GENERAL

A sharply-divided West Virginia Supreme Court of Appeals has narrowly rejected the application of the state’s Hate Crimes Law to an anti-gay assault on two men.

The court, on May 9, voted 3-2 that Steward Butler — who reacted to seeing two gay men kissing each other on a sidewalk in Huntington in the early hours of April 5, 2015, by exiting his car and slugging both men in the face — could not be charged with a hate crime.

The West Virginia law, enacted in 1987, makes it a felony to willfully injure somebody because of their “race, color, religion, ancestry, national origin, political affiliation or sex.”

High court splits sharply on extending law to gays

According to the opinion for the majority of the court by Chief Justice Allen H. Loughry, II, since 1987 members of the legislature have introduced 26 bills to amend the law to add “sexual orientation” to the list, but none has succeeded.

Butler was positively identified as the perpetrator because one of the victims managed to record the assault on his cellphone.

“That video recording,” wrote the court, “as well as the statements taken from the defendant’s companions, were used to identify the defendant as the alleged perpetrator.”

The Cabell County prosecutor presented the case to a grand jury, which charged Butler with two counts of battery and two violations of the Hate Crimes Law. Butler moved to dismiss the hate crimes counts, arguing that the statute did not apply to assaults motivated by the sexual orientation of the victim.

Circuit Judge Paul T. Farrell granted Butler’s motion, dismissing the hate crime counts. He found that “sex” and “sexual orientation” are “two distinct categories of potential discrimination” and that the legislature’s decision not to add “sexual orientation” to the statute, when many other states had done so, clearly signified its intention, so the court “cannot expand the word ‘sex’ to include ‘sexual orientation.’”

The local prosecutor appealed this ruling. Perhaps not surprisingly, West Virginia Attorney General Patrick Morrisey’s office filed a brief supporting the dismissal, while Lambda Legal, which has been actively litigating the issue whether “sex” includes “sexual orientation” in discrimination statutes, filed a brief supporting the local prosecutor.

A bare majority of the Supreme Court agreed with Farrell that the hate crime counts must be dismissed. Loughry rejected any contention that the word “sex” as used in the statute was “ambiguous.” As such, he wrote, it was not subject to “interpretation” but must be applied according to its “plain meaning.”

“Affording the undefined term ‘sex’ its common and ordinary meaning,” he wrote, “we find the word to be clear and unambiguous and to have a very different meaning and import than the term ‘sexual orientation.’” To support this proposition, he cited definitions from four dictionaries and noted that all but five states have passed hate crimes laws but that no court has ever before interpreted those that do not specifically mention “sexual orientation” to apply to crimes committed because a victim was lesbian or gay.

The chief justice also asserted that in a criminal case the court should use the “rule of lenity” to ensure that people have clear notice of what conduct is condemned by the statute, while insisting that the court’s ruling did not imply approval of Butler’s conduct. Butler remains charged with two counts of battery, he noted.

“It is imperative to remember that it is not for this Court arbitrarily to read into a statute that which it does not say,” wrote Loughry.

Justice Margaret L. Davis, joined by Justice Robin Jean Workman, dissented in an opinion that brought together the recent opinions accepting the proposition that discriminating because of a person’s sexual orientation necessarily involves sex discrimination. As far as the dissenters were concerned, the term “sex” in the statute is not ambiguous but the prohibition of willfully injuring somebody because of their sex clearly includes the facts of this case.

Davis built her argument by running through the developing case law before making this striking assertion: “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.”

Davis continued, “The indictment in this case properly alleged the attack occurred because of the victims’ sex. Certain individuals are targeted for violence because they are perceived to violate socially-established protocols for gender and sex roles. The perpetrators in such instances have drawn conclusions that the victim has contravened certain unspoken rules, and the bias-motivated crime thus ensues.”

For Davis, “The pertinent question is not whether the statute contains the words ‘sexual orientation.’ Rather, it is whether the crime was committed because of the victims’ sex. The phrase ‘because of sex’ encompasses the actions taken against the victims in this case.”

Davis also pointed out that allowing the hate crime counts to proceed did not make the Supreme Court “both judge and jury,” as it would still be up to the prosecutor to prove the discriminatory intent required by the statute.

Because this decision did not address any federal constitutional issues, it cannot be appealed by the prosecutor to the US Supreme Court.