West Virginia Rules That Anti-LGBT Assaults Don’t Constitute Hate Crimes

The West Virginia Supreme Court of Appeals ruled in a 3-2 decision that the state does not explicitly grant hate crimes protections to LGBT individuals, highlighting an ongoing and nationwide legal argument. 

Siding with a lower court, the Court of Appeals determined that the state’s existing hate crimes law, which protects people on the basis of sex but not sexual orientation, does not cover LGBT people under a plain reading of the law.

The court noted in its opinion:

A review of similar laws from other states demonstrated that ‘there are two distinct categories of potential discrimination: discrimination based on sex and discrimination based on sexual orientation. [The] West Virginia legislature could have included sexual orientation as an area of protection … [as] [n]umerous other states have done.

The case revolves around an April 2015 incident in which Steward Butler, a former running back for the Marshall University football team, attacked two men after he witnessed them kissing in public.

Butler allegedly saw the men — Casey Williams and Zackary Johnson — from his car, shouted homophobic slurs at them and then punched them in their faces. He also reportedly knocked one of the men to the ground.

As a result, Butler was charged with two misdemeanor counts of battery. The prosecution also sought to bring heightened hate crimes charges, and that is where the legal dispute began.

The state’s administration found itself in an odd position during this trial. Given that it is routine for the state attorney general to enforce state law, Patrick Morrisey —  a Republican — would usually be tasked with examining felony charges for a hate crimes conviction. But Morrisey argued that those charges weren’t applicable in this case.

AG Morrisey has not said whether he personally believes that such an attack should fall under the classification of a hate crime. However, he made clear that West Virginia lawmakers have, on several occasions, had the opportunity to write sexual orientation-inclusive language into the state’s hate crimes statute – and always voted against it.

As a result, the attorney general contends that the courts cannot, in effect, create a protected class.

“The facts of this case are deeply disturbing and heinous, and I remain steadfast in describing the alleged behavior as despicable, but such conduct does not give the judicial system a license to rewrite state law,” Morrisey’s office stated. “That authority lies with the state Legislature and this decision preserves that balance. I’m not saying the opinion that the law shouldn’t be changed and neither did the court. But at the time that this occurred, the law of West Virginia did not include that class as protected by the law.”

Of course, this opinion does not come without wider significance. Obviously, the U.S. has an LGBT-inclusive federal hate crimes law, but across the country, there is an ongoing legal debate as to whether these sex discrimination protections also, by extension, protect LGBT people.

The Obama administration backed this interpretation, and several courts have found the argument convincing. Regardless of whether Congress has specifically met the question of discrimination based on LGBT identity, it has decided that facing discrimination on the grounds of failure to meet sex expectations is unconstitutional.

As such, whether someone faces discrimination for their asserted gender identity or, as in this case, they face violence for being part of a same-gender couple, the law already protects them.

The dissenting opinion in this case agreed with that logic and argued that to oppose LGBT-inclusivity, one has to perform a reading of sex discrimination that is willfully blind to the overlap.

Republican lawmakers in particular have been leery of this interpretation, and often for less than generous reasons: namely, they don’t believe we should protect LGBT people.

Nevertheless, even some who do support the community believe that, in terms of good lawmaking, we should recognize that while sex discrimination can extend to discrimination surrounding LGBT identity, anti-LGBT discrimination may present as its own special brand of animus. And, therefore, it requires specific statutes. They argue that extending existing laws may not be the best solution.

The nature of this case is complex, and it is telling that partisan politics seem to be at play as to whether individual courts will recognize an LGBT-inclusive view of sex discrimination. For their part, LGBT rights groups have said that this case is one among many that highlight the need for individual states to act and create LGBT-inclusive hate crime laws.

GLAAD President Sarah Kate Ellis explained: “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.”

In this instance, the case now returns to the lower courts where the battery charges will be weighed. There has been no word on any action to amend the state’s hate crimes statute to specifically include LGBT people.

If anything, this case makes it all too clear that specifically protecting LGBT people at both the state and federal level is a must.

Photo Credit: Matt Popovich/Flickr


Freya H
Freya H3 hours ago

Shame on West Virginia's excuse for a government! We The People reject this bulls**t. RESIST and PERSIST! If you live in West Virginia, make sure you are registered to vote, then support genuinely progressive candidates.

Leo Custer
Leo Custeryesterday

Thank you for sharing!

Christine V
Christine V2 days ago

They are hate crimes.

Karen H
Karen H4 days ago

Maybe we should call them "fear" crimes. People react violently when they fear something. And they fear things they don't understand. A little education goes a long way.

Joan E
Joan E6 days ago

Republicans are leery of acting fairly toward minority populations of any type.

Bill E
Bill Eagle6 days ago

Dumb ruling. Just so wrong

Janis K
Janis K7 days ago

Thanks for sharing.

william Miller
william Miller7 days ago


Rachel -
Rachel -8 days ago

Philip Chandler, I think you misunderstood my post because because I should have said, ...favors some "crime victims" over others, not "people." For example, assume a veteran, a homeless person, a democrat, or a pedophile for that matter, is targeted out of hate for those groups -no hate crime if the victim class isn't covered in the jurisdiction. I see that as a violation of the Equal Protection Clause.

As for the 1st Amendment. I believe offenders should be punished for the criminal acts they commit, not for their thoughts that someone inferred from their speech. You don't agree, and you've got SCOTUS on your side for now. Speaking of motive, yes, motive is typically an element of crimes; however it's not a necessary element of proving any crime except hate crimes.

Finally, I read your post to Dan Blossfield and - not sure if I understood you correctly - but hate crime laws aren't predicated on a determination that it's acceptable to be a certain type (for lack of a better word) of person. The argument is simply that hate-motivated crimes are more damaging to society and victims than non hate-motivated crimes. But to come full-circle, this only applies to crimes directed at certain victims...

Leo C
Leo Custer9 days ago

Thank you for sharing