West Virginia Hate Crime Law Doesn't Cover Attacks Motivated By Sexual Orientation, Court Rules

The West Virginia Supreme Court of Appeals ruled this week that the state's hate crime statute does not cover attacks that may be motivated by a person's sexual orientation.

At issue was whether attacks motivated by a person's "sex," which are covered in the state's statute, extended to include attacks motivated by sexual orientation.

The case at the center of the ruling involves a former Marshall University football player Steward Butler. In April 2015, Butler allegedly punched and hurled homophobic slurs towards two men whom he saw kissing on the sidewalk. Butler was charged with two counts of battery and two counts of violations of an individual's civil rights.

A circuit court in West Virginia dismissed the two civil rights violations charges against Butler, ruling that the word "sex" in West Virginia Code was plain and unambiguous and could not be expanded to include "sexual orientation."

The state argued that the lower court erred when it dismissed the counts based on its "erroneous determination" that the word "sex" could not be expanded to include sexual orientation. In the opinion, written by Chief Justice Allen H. Loughry, the Supreme Court says the word "sex" in West Virginia code is undefined and the court has previously addressed undefined words. Citing a case where the court addressed the words "force" and "threat," relying on precedent, the ordinary meanings were ascribed to both words.

Loughry cited hate crime laws in different states, noting that "sex" and "sexual orientation" are being treated as distinct categories. The opinion also notes that the West Virginia state legislature has failed on 26 separate occasions to include "sexual orientation" in the statute since it was first enacted in 1987, writing that this was indicative of the legislature's intent to not include the term.

The opinion states that through the application of the presumption that legislature said what it meant and meant what it said in the statute, and based upon the common and plain meaning of the word "sex" and the legislature's clear intent, "we are left with the ineluctable conclusion that the word "sex" does not include "sexual orientation." The ruling was 3-to-2.

Image courtesy West Virgina Judiciary