A West Virginia circuit court has asked the state's supreme court to decide if a former Marshall University running back can be charged with a hate crime for attacking a gay couple after seeing them kiss.
The question raised by the lower court arose because West Virginia law does not explicitly include sexual orientation in its hate crimes legislation. Nonetheless, the defendant in this case, 24-year-old Steward Butler, was indicted by a grand jury on hate crimes charges after the prosecutor successfully argued that Butler's attack was motivated by the couple's gender, a category that is protected under West Virginia law.
RELATED: College Running Back Indicted on Hate Crime Charges for Assaulting Gay Couple He Saw Kiss on the Street: VIDEO
Cabell County wants the court to decide whether state code embodies a protection of an individual's civil rights if the volatile act is based solely upon said person's sexual orientation.
The statute itself states, “All persons within the boundaries of the state of West Virginia have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.”
Prosecutors allege the violation is for the victim's sex, not sexual orientation, claiming Butler would not have punched the two men had they been women, or one had been a woman.
Circuit Court Judge Paul T. Farrell wants to Supreme Court to answer whether sexual orientation is encompassed under sex. [sic]
There is some recent legal precedent for the prosecution's argument that “sexual orientation is encompassed under sex.” Just last week, a federal judge in California ruled that a lesbian couple can argue under Title IX that Pepperdine University illegally discriminated against them because of their sexual orientation. Like West Virginia's civil rights law, Title IX does not explicitly mention sexual orientation but does prohibit gender-based discrimination.
Explaining the connection between gender-based and sexual orientation-based discrimination, the judge in California wrote, “If plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment.” The judge went on to call the case a “straightforward claim of sex discrimination.” Similar logic could seemingly apply here.
The assault at the heart of the West Virginia case dates back to April of this year. Butler reportedly encountered the gay couple kissing on the street then proceeded to shout gay slurs at them and beat them. Butler was dismissed from the Marshall University football team after the school's athletic director saw video of the attack.
Butler is charged with two counts of felony civil rights violations and two counts of misdemeanor battery. He has pleaded not guilty and is set to stand trial on January 26.
Watch a news report that shows the attack, below. Warning: the content is graphic.
Also, watch Butler evade questions from reporters as he's brought in.
