A sharply-divided West Virginia Supreme Court of Appeals voted 3-2 on May 9 to reject the application of the state’s Hate Crimes Law to the criminal prosecution of Steward Butler, who reacted to two gay men kissing each other on a sidewalk in Huntington, West Virginia, in the early hours of April 5, 2015, by exiting his car and slugging both men in the face. State v. Butler, 2017 WL 1905948, 2017 W. Va. LEXIS 333 (May 9, 2017).
W.Va. Code Section 61-2-9(c), which was enacted in 1987, makes it a felony to willfully injure somebody because of their “race, color, religion, ancestry, national origin, political affiliation or sex.” According to the opinion for the majority of the court by Chief Justice Allen H. Loughry, II, since 1987 members of the legislature have introduced 26 bills to amend the law to add “sexual orientation” to the list, but none has succeeded.
Butler was positively identified as the perpetrator because one of the victims managed to record part of the assault on his cellphone. “That video recording,” wrote the court, “as well as the statements taken from the defendant’s companions, were used to identify the defendant as the alleged perpetrator.” The Cabell County prosecutor presented the case to a grand jury, which charged Butler with two counts of battery and two violations of the Hate Crimes Law. Butler moved to dismiss the Hate Crimes counts, arguing that the statute did not apply to assaults motivated by the sexual orientation of the victim.
Circuit Judge Paul T. Farrell granted Butler’s motion, dismissing the hate crime counts. He found that “sex” and “sexual orientation” are “two distinct categories of potential discrimination” and that the legislature’s decision not to add “sexual orientation” to the statute, when many other states had done so, clearly signified its intention, so the court “cannot expand the word ‘sex’ to include ‘sexual orientation.’”
The local prosecutor appealed this ruling. Perhaps not surprisingly, West Virginia Attorney General Patrick Morrisey’s office filed a brief supporting the dismissal, while Lambda Legal, which has been actively litigating the issue whether “sex” includes “sexual orientation” in discrimination statutes, filed a brief supporting the local prosecutor.
A bare majority of the Supreme Court agreed with Judge Farrell that the hate crime counts must be dismissed. Chief Justice Loughry rejected any contention that the word “sex” as used in the statute was “ambiguous.” As such, he wrote, it was not subject to “interpretation” but must be applied according to its “plain meaning.”
“Affording the undefined term ‘sex’ its common and ordinary meaning,” he wrote, “we find the word to be clear and unambiguous and to have a very different meaning and import than the term ‘sexual orientation.’” To support this proposition, he cited definitions from four dictionaries, noted that all but a five states have passed hate crimes laws but that no court has ever before interpreted those that do not specifically mention “sexual orientation” to apply to crimes committed because a victim was lesbian or gay. He also repeated several times that the failure of the legislature to pass any of the 26 bills proposed to add “sexual orientation” to the statute evidenced legislative intent not to include it. Furthermore, he wrote, in a criminal case the court should use the “rule of lenity” to ensure that people have clear notice of what conduct is condemned by the statute. He also insisted that the court’s ruling did not imply approval of Butler’s conduct, and pointed out that Butler is still charged with two counts of battery.
“It is imperative to remember that it is not for this Court arbitrarily to read into a statute that which it does not say,” wrote Loughry. “Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obligated not to add to statutes something the legislature purposely omitted.”
Justice Margaret L. Davis, joined by Justice Robin Jean Workman, dissented in an opinion that brought together the recent opinions accepting the proposition that discriminating because of a person’s sexual orientation necessarily involves sex discrimination. As far as the dissenters are concerned, the term “sex” in the statute is not ambiguous but the prohibition of willfully injuring somebody because of their sex clearly includes the facts of this case.
Justice Davis built her argument by running through the developing case law, starting with the U.S. Supreme Court’s 1989 Price Waterhouse decision and ending with 2nd Circuit Chief Justice Katzmann’s recent concurring opinion in Christiansen v. Omnicom Corporation. This summary culminated with the following bold assertion: “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? 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.”
“The indictment in this case properly alleged the attack occurred because of the victims’ sex,” she continued. “Certain individuals are targeted for violence because they are perceived to violate socially-established protocols for gender and sex roles. The perpetrators in such instances have drawn conclusions that the victim has contravened certain unspoken rules, and the bias-motivated crime thus ensues.”
Quoting from the 7th Circuit’s recent decision in Hively v. Ivy Tech Community College, she wrote, “While the majority might find the crime was actually committed ‘because of sexual orientation,’ it is a ‘common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.’”
She accused the majority of concluding its analysis “prematurely. Simply finding the absence of those two magic words fatal to the State’s contention is the most effortless answer this Court could conjure. But while an answer without more in-depth analysis may be the path of least resistance, it also gives the shortest shrift to critical thinking. . . The pertinent question is not whether the statute contains the words ‘sexual orientation.’ Rather, it is whether the crime was committed because of the victims’ sex. The phrase ‘because of sex’ encompasses the actions taken against the victims in this case.”
Justice Davis rejected any argument that the developments in discrimination law could not be carried over to the criminal law context. She pointed out that developments in discrimination law and criminal law have been intertwined over the years. “Anti-hate legislation has typically taken the form of either penalty enhancement or independent legislation,” she wrote. “Both types generally define the unlawful acts as acts motivated ‘because of’ (‘based on,’ ‘on the basis of,’ ‘by reason of,’ etc.) . . . [certain protected statuses]. This form is similar to Title VII, the federal employment discrimination statute, a point Chief Justice Rehnquist invoked in upholding the Wisconsin [criminal] statute” in Wisconsin v. Mitchell in 1993.
She also pointed out that allowing the hate crime counts to proceed did not put the Supreme Court in the position of “both judge and jury,” as it would still be up to the prosecutor to prove the assertions of discriminatory intent required by the statute. “Allowing Counts I and III to stand would provide the prosecution ample time to prove the assertions, the jury would be properly instructed on evidentiary requirements and burdens of proof, and the State would be required to prove its allegations of statutory violation beyond a reasonable doubt. At this juncture, however, the evaluation must concentrate upon the sufficiency of the indictment for a hate crime, and it is my firm belief that the majority of this Court adopted an overly narrow focus, metaphorically missing the forest for the trees.”
Because this decision did not address any federal constitutional issues, it cannot be appealed by the prosecutor to the U.S. Supreme Court. Theoretically, one might argue that the majority’s decision violates the equal protection rights of gay victims, as the court has interpreted the statute to protect straight people from being attacked because of their sex but to deny the same protection to gay people, for no reason other than the legislature’s repeated rejection of amendments to extend such protection to gay people. But as far as one can tell from reading the majority and dissenting opinions, nobody made that argument in the West Virginia courts, so it was not preserved for review.Tags: anti-gay bias crimes, anti-gay hate crimes, Cabell County Circuit Judge Paul T. Farrell, Chief Justice Allen H. Loughry II, gender, hate crimes against LGBT people, hate crimes laws, Huntington West Virginina, Justice Margaret L. Davis, Justice Robin Jean Workman, Lambda Legal, sex discrimination, sexual orientation, sexual orientation discrimination, State v. Butler, Steward Butler, Supreme Court of Appeals of West Virginina, West Virginia Attorney General Patrick Morrisey