CHARLESTON – West Virginia Supreme Court Justice Margaret L. Workman called the majority opinion “overly simplistic and constricted” and said that certain individuals are targeted for violence because they are perceived to violate socially established protocols for gender and sex roles.

“In my opinion, the meaning of ‘because of … sex’ is unambiguous,” Workman wrote. “Pursuant to the statute, a crime is considered a hate crime if certain conditions are met. In the hate crime setting, it is the bias and motivation that are ultimately being sanctioned. So, some of the pertinent questions become: What was the motivation for the conduct alleged to be criminal under West Virginia Code § 61-6-21(b)? Was the alleged conduct affected by the victim’s sex? Was the crime committed because of the victim’s sex? What is the meaning of the phrase ‘because of’?”

Workman
Workman

Justice Robin Jean Davis joined Workman in her dissenting opinion.

Workman wrote, for example, if a woman works for a corporation and fails to conform to the corporation’s expectations of appropriate femininity or gender identity and she is denied opportunities for promotion, she has been discriminated against because of her sex, not simply because she possesses female anatomical parts but because she was perceived as behaving outside the social expectation of how a woman should conduct herself in that corporate environment.

In another example, Workman wrote that if a Caucasian man is fired because he is married to an African-American woman, he has been discriminated against not simply because of the hue of his skin, but the act was committed because he was perceived to be behaving outside the social expectation of how a Caucasian man should behave with an African-American woman.

Workman listed several other examples before bringing back to the case of Casey Williams and Zackery Johnson exchanging a kiss on the sidewalk before being attacked by Steward Butler.

“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,” she wrote.

Workman wrote that 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,” she wrote. “Based upon the foregoing, I respectfully dissent to the unnecessarily constrained view articulated by the majority herein. I would have found Counts I and III of the indictment sufficient, and I believe the circuit court erred in dismissing those counts.”

In the majority opinion, Chief Justice Allen Loughry wrote that the two dismissed counts charged the defendant with criminal civil rights violations under West Virginia code and the state argued that the circuit court erred when it dismissed the two counts on “its erroneous determination that the word ‘sex’ in West Virginia code … was plain and unambiguous and could not be expanded to include ‘sexual orientation.’”

On April 5, 2015, Butler was riding in a car with friends in Huntington and, while the car was sitting at a stoplight, he observed two men, Williams and Johnson, exchange a kiss on the sidewalk.

Butler allegedly voiced homophobic slurs toward Williams and Johnson, exited the vehicle, struck both Williams and Johnson in the face with his fist, knocking Williams to the ground.

The court’s 3-2 decision found the Legislature, “said … what it meant and meant what it said,” in concluding the statute’s use of the word “sex” does not include “sexual orientation.”

“The state Supreme Court of Appeals interpreted the law as written, respecting the Legislature’s authority to determine criminal law,” said Attorney General Patrick Morrisey. “The facts of this case are deeply disturbing and heinous, and I remain steadfast in describing the alleged behavior as despicable, but such conduct does not give the judicial system a license to rewrite state law. That authority lies with the state Legislature and this decision preserves that balance.”

The state is represented by Cabell County Assistant Prosecuting Attorney Lauren E. Plymale. Atlanta attorney Gregory R. Nevins and Charles Town attorney Stephen G. Skinner, a former state senator, represented the Lambda Legal Defense and Education Fund, which filed an amicus curiae brief in the case.

Butler is represented by Raymond A. Nolan of the Nolan Law Firm.

West Virginia Supreme Court of Appeals case number: 16-0543

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