The Supreme Court of West Virginia has ruled that anti-gay attacks do not constitute hate crimes.

The court had been hearing an appeal in the case of Steward Butler, a college football player who committed a violent assault on gay couple Casey Williams and Zackery Johnson after seeing them kissing.

Butler, who yelled homophobic slurs as he punched the men and knocked one of them to the ground, initially faced two counts of battery and two hate crime charges.

However, a circuit judge threw out the hate crime charges, because the state’s definition of hate crime only applies to crimes based on “race, colour, religion, ancestry, national origin, political affiliation or sex”.



Steward Butler

The decision was appealed by the prosecutors, who argued that the attack was covered by the hate crime statute under the provisions that cover crimes based on sex, as the attack was perpetrated because the two victims were male.

However, this week the West Virginia Supreme Court ruled by a three-two vote in favour of Butler, rejecting the argument that homophobic crimes constitute sex-based hate crimes.

In a majority opinion, the justices insisted on a narrow interpretation of the law, writing: “The word ‘sex’ in West Virginia [law] is unambiguous and clearly imparts being male or female, and does not include ‘sexual orientation’.”

The judgment notes that the Republican-dominated state legislature has repeatedly rejected attempts to protect people from hate crimes based on sexual orientation, citing this as evidence that it is distinct from sex-based hate crime.

It says: “Our determination is supported by the Legislature’s repeated rejection of any attempt to add those terms to the statute in the thirty years since it first enacted the statute in 1987.

“The Legislature’s repeated refusal to amend [the law] to include ‘sexual orientation’ is undoubtedly indicative of its intent not to include ‘sexual orientation’ therein.

“In fact, it appears that since 1987, there have been at least twenty-six attempts to amend the statute to include ‘sexual orientation’, and each attempt has failed.

“Regardless of the reasons behind the numerous failed attempts to amend [the law], the very fact that there have been twenty-six failed attempts cannot be ignored.”

West Virginia’s narrow hate crime laws conflict with the federal laws put in place by Barack Obama.

In 2009 Obama signed the the Matthew Shepard and James Byrd Jr Hate Crimes Prevention Act, named in honour of murdered gay man Matthew Shepard.

The law added federal-level hate crime protections for crimes based on gender, sexual orientation, gender identity, or disability.

Last year in West Virgina a gay Democratic candidate was targeted with an anti-LGBT smear campaign