CHARLESTON, W.Va. — More than two years after a former Marshall University football player was first charged with punching two men he’d seen kissing on a Huntington sidewalk, the state Supreme Court is taking up the question of whether Steward Butler can be charged with a hate crime under West Virginia law.
The Supreme Court heard arguments Tuesday in Charleston.
“This is a violation of civil rights because of sex and the state should have been allowed to take this to a jury,” said Lauren Plymale, Cabell County assistant prosecuting attorney.
In early April 2015, Huntington Police said Butler was in a passing car when he spotted the two men on a 9th Street sidewalk.
The criminal complaint alleged Butler exited the car, shouted homophobic slurs at the men and then punched the victims, Zackary Johnson and Casey Williams.
Originally, Butler was charged with two misdemeanor battery charges. Later, he was indicted on two additional counts for alleged violations of civil rights.
In May 2016, Cabell County Circuit Judge Paul Farrell ruled that Butler could not be charged with felony hate crimes under current state law which prohibits civil rights violations based on race, color, religion, ancestry, national origin, political affiliation or sex.
On appeal, Plymale argued the two victims would not have been attacked if they had been a man and a woman, not two men, so the “sex” protection applied.
“Had Mr. Williams been Miss Williams, neither victim would have been violently and physically attacked,” Plymale said. “The physical attack in this case occurred because of the sex of the victims.”
But Elbert Lin, West Virginia solicitor general, rejected that.
He was part of Tuesday’s arguments as a representative of the West Virginia Attorney General’s Office which filed a friend of the court brief last November.
Lin told members of the Supreme Court “sex” and “sexual orientation” are not interchangeable.
“We do not defend the alleged actions of Steward Butler, but the interpretation of the West Virginia hate crimes statute that is advanced by the prosecuting attorney on behalf of the state is unprecedented and it tends to usurp the Legislature’s responsibilities,” Lin said.
He continued, “We are not suggesting that it would be bad or good policy for sexual orientation to be a covered category under 61-6-21. All we are saying is that under principles of separation of powers and under principles of fundamental fairness, this Court cannot import that category into the plain language of the statute.”
Raymond Nolan, Butler’s attorney, agreed with Lin about sexual orientation not being one of the protected classes within the statute.
Even if there is a change in the law one day, “It was not the law on the date in question and is not applicable to the action under which Mr. Butler is charged,” Nolan said.
Justice Robin Davis called the Attorney General’s filing “a very compelling argument that the statute is crystal clear,” she said. “And that the Legislature, in terms of the separation of powers, has the ability to write sexual orientation in the statute which it did not do this last session.”
Her question for Plymale was this: “Are you asking us to legislate from the bench?”
“No, your honor, I believe I am asking you to interpret…,” Plymale said before Justice Davis interrupted, asking “Why do we have to interpret when the statute does not use the words?”
The Supreme Court was previously asked in February 2016 to address the question of the applicability of hate crime charges in this case but did not address the matter then.
After Tuesday’s arguments, a ruling is expected later this year.
Butler, who was 23 at the time of the arrest, was entering his senior season as a running back for the Thundering Herd. He was dismissed from the team following his arrest.
In a statement at that time, Gary White, Marshall University’s interim president, said the “violent, bigoted behavior” alleged would not be tolerated at Marshall.
Butler is facing two misdemeanor battery charges. Punishments for misdemeanor battery convictions are up to 12 months in jail and a possible fine of $500 maximum.
Convictions for civil rights violations come with up to ten years in prison and a $5,000 fine on each count.