The question of whether or not a West Virginia man who committed an anti-LGBT hate crime technically committed said crime is currently up for debate in the state’s Supreme Court.
In April 2015, Zackary Johnson and Casey Williams kissed while walking down a street in Huntington, West Virginia. A man in a passing car saw them and began shouting homophobic slurs at them. When they didn’t respond, he exited the vehicle and proceeded to beat them up.
One of the victims recorded the attack on his phone, which allowed police to quickly identify and arrest Steward Butler as the assailant.
A grand jury later indicted Butler for battery and a hate crime, even though West Virginia doesn’t mention sexual orientation in its civil rights code. To ensure that the attack was defined as such, the prosecution argued that discrimination on the basis of sexual orientation is a form of sex discrimination, which is protected under current state law.
The defendant appealed the grand jury’s decision and the matter moved on to the state’s supreme court.
Cabell County Assistant Prosecutor Lauren Plymale argued in favor of the hate crime distinction in front of the court.
“It is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” Plymale explained.
She argued that Butler was relying on sex stereotypes to justify his discrimination, namely that men should only kiss women and vice versa. Plymale reasoned that if either man had been a woman, Butler wouldn’t have attacked them, proving that his discriminatory act was based on the sex of the victims.
In turn, Cabell County Defense Attorney Ray Nolan and Solicitor General Elbert Lin disagreed with Plymale, arguing that the state Legislature had a clear avoidance to adding sexual orientation.
“The opportunity to amend the statute has been available for 30 years now,” Nolan said, according to The State Journal. “There have been 20-some opportunities for attempted amendment of the statute, all including sexual orientation, none of which have been incorporated.”
Plymale countered this assertion by saying that defining sex to include sexual orientation “is not a novel construction of the statute” and that any “person of ordinary intelligence” would know that attacking someone based on that bias would be prohibited.
Justice Robin Davis called Nolan’s defense a “compelling argument,” adding that the state’s civil rights code is clear on the matter of what constitutes a hate crime. She then accused Plymale of asking the court to “legislate from the bench,” a claim the prosecutor rejected.
Until the justices rule on the matter, Butler will remain released on bond. For his two misdemeanor battery charges, he faces up to 12 months in prison and upwards of $500 in fines.