Punching Men Who Kissed Not Hate Crime in West Virginia

By Jessica DaSilva

A man who got out of a car and allegedly punched two men for kissing on a West Virginia public street cannot be charged with a hate crime, the state Supreme Court ruled ( State v. Butler , 2017 BL 154308, W. Va., No. 16-0543, 5/9/17 ).

Steward Butler allegedly directed homophobic slurs at the men after seeing them exchange a kiss before punching both of them in the face, knocking one to the ground.

Butler was charged with two counts of assault and two hate crimes. But he challenged the hate crime indictment.

The state statute for hate crimes explicitly protects people based on “race, color, religion, ancestry, national origin, political affiliation or sex.”

Despite arguments from the state that the term “sex” is ambiguous, the court stated that the dictionary meaning and the legislature’s refusal to add “sexual orientation” to the statute made it clear that it was only intended to cover male and female genders.

“Certainly, unsuccessful legislative efforts can be attributed to a myriad of reasons, but regardless of the reasons behind the numerous failed attempts to amend § 61-6 -21 to include ‘sexual orientation,’ the very fact that there have been twenty-six failed attempts cannot be ignored,” wrote Chief Justice Allen H. Loughry II for the majority. “Indeed, other courts have found the repeated rejection of legislation to be clear expressions of intent.”

The decision drew an extensive dissent written by Justice Margaret L. Workman and joined by Justice Robin Jean Davis, calling into question the context of the court’s definition.

“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?” Workman asked. “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.”

Lauren E. Plymale, assistant prosecuting attorney for Cabell County, Huntington, W. Va., represented the state. Raymond A. Nolan, Lavalette, W. Va. represented Butler.

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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