CHARLESTON, W.Va. — Last April, police say, a Marshall University football player saw two men kissing on a West Virginia street, hopped out of the passenger seat of a car, shouted homophobic slurs and attacked the men, punching them in the face.
Those charges against Steward Butler may sound like a textbook hate crime case. But, a year later, the former running back no longer faces charges of violating the men’s civil rights.
That’s partly because West Virginia, like 19 other states, does not have a hate crime law that protects people targeted specifically because of their sexual orientation, according to the Human Rights Campaign. And while the U.S. Justice Department is still weighing its options in the case, some observers say it may not fit the federal definition of a hate crime, if only for technical reasons.
In a decision this month, Cabell County Circuit Court Judge Paul Farrell said West Virginia civil rights law protects people based on sex, but not sexual orientation, and ruled to drop the hate crime charges against Butler in 60 days, giving prosecutors time to appeal. Many other states specifically mention sexual orientation in listing the categories that elevate violence or threats of violence to a hate crime. West Virginia lawmakers had plenty of chances to follow suit but didn’t, Farrell wrote.
The ruling leaves two options for West Virginia prosecutors: hope for a favorable upcoming appeal with the state Supreme Court, or — if they lose — lobby for changes to state law with a Legislature that typically hasn’t added LGBT protections.
“I don’t know whether there’s really been an incident to highlight it until now,” said Cabell County Prosecutor Sean “Corky” Hammers. “We now have an incident where two men were battered and their rights were violated, and I think that even if we don’t win at the Supreme Court, we definitely put the spotlight on the statute that says, ‘hey, it should be interpreted to cover sexual orientation.'”
Butler — who was kicked off the Marshall football team after the attack, and did not graduate, according to school spokeswoman Ginny Painter — pleaded not guilty to two counts of felony civil rights violations and two counts of misdemeanor battery in June 2015 over in the incident in Huntington, an industrial city along the Ohio River that’s home to the university.