LGBT attacks not hate crimes, West Virginia court rules

Chief Justice says hate crimes apply only to sex, not sexual orientation

(Spencer Platt/Getty Images)

West Virginia's highest court has ruled that the state’s hate crime protections do not extend to anti-LGBTQ attacks.

West Virginia currently has laws making sex-based hate crimes a prosecutable offence. But the Supreme Court of Appeals recently ruled that those crimes don’t extend to hate crimes based on gender orientation.

“Affording the undefined term ‘sex’ its common and ordinary meaning…we find the word to be clear and unambiguous and to have a very different meaning and import than the term ‘sexual orientation',” Chief Justice Allen H Loughry wrote in the majority decision.

So far, that means at least one man won’t face hate crime charges for allegedly punching a gay couple while voicing homophobic slurs.

In the early hours of 5 April 2015, the state alleges, Steward Butler pulled up to a stoplight and saw Casey Williams and Zackery Johnson kissing on the sidewalk.

He began directing anti-gay insults toward the couple, and then got out of his vehicle and “struck both Williams and Johnson in the face with his fist, knocking Williams to the ground". Some of the altercation was captured on video.

Mr Butler was indicted for both battery and “violations of an individual’s civil rights” – the state’s term for hate crimes – in May of that year. But Mr Butler challenged the decision, claiming that the state’s hate crime laws do not apply to sexual-orientation-based attacks.

The appeals court agreed.

“Applying West Virginia Code § 61-6-21(b), as it is currently written, the State cannot prosecute the defendant for an alleged criminal civil rights violation arising out of the victims’ sexual orientation,” Mr Loughry wrote.

Mr Butler can now be prosecuted on two counts of battery only.

LGBTQ rights groups condemned the decision, calling it “a step 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,” the president and CEO of LGBTQ monitoring group GLAAD, Sarah Kate Ellis, said in a statement to The Independent.

FBI data shows LGBTQ individuals are more likely to be the target of hate crimes than any other minority group aside from African Americans. The FBI documented more than 1,200 LGBTQ-related hate crimes in 2015 alone.

Protections for LGBTQ individuals, however, vary widely by state. West Virginia is one of six states that list sex- or gender-based attacks as a hate crime, but do not mention sexual orientation. Twenty states lay out specific protections for both sex- and sexual-orientation-based attacks. Six states list only sexual orientation.

A bipartisan bill to add language on sexual orientation to hate crime laws was referred to the West Virginia House Judiciary Committee in March. No further action was taken.