Cabell County prosecutors are again asking the state Supreme Court to rule on whether Steward Butler, the former Marshall football player who allegedly attacked two men when he saw them kiss, can be charged with a hate crime.
In December, Lauren Plymale, Cabell County assistant prosecutor, and Raymond Nolan, Butler's defense attorney, sent a certified question to the state Supreme Court, asking if the state's hate crimes law - since it includes protection based on sex - could be interpreted to include protection based on sexual orientation. The state argued that Butler would not have attacked if one or both of the men had been a woman.
In February, the court, in a split decision, said it was declining to review the question.
Last month, Cabell Circuit Judge Paul Farrell ruled that Butler could not be charged with a hate crime. The judge noted that the West Virginia Supreme Court has said lower courts should look to the intent of a law when interpreting it, and said it certainly seems that lawmakers intend for sexual orientation to be left out of the state hate crimes law, since they have had numerous opportunities to add it.
The order was entered on May 13, and the hate crimes charges against Butler were to be dismissed in 60 days, unless the state appealed.
Cabell prosecutors' notice of appeal was filed on Thursday.
The prosecutors argue that the court should consider the appeal because:
n The case was the first time a court considered whether West Virginia's hate crimes law protects a person's civil rights based on sexual orientation, and lower courts need guidance.
n Other jurisdictions with hate crimes laws listing sex, but not specifically sexual orientation, have found that their laws cover sexual orientation.
n The "legislative history of the statute is unclear," and even a ruling that sexual orientation is not included in the law would send a message to state lawmakers that the law is deficient.
n It was "plain error" for the Farrell to dismiss the charges.
Butler is still facing two counts of battery. His trial is set for 9 a.m. Aug. 16.
In April 2015, he allegedly punched two men and shouted homophobic slurs at them after he saw them kiss on the streets of Huntington.
He was indicted the following month on two felony civil rights violations and two counts of battery. He pleaded not guilty to the charges.
Reach Erin Beck at erin.beck@wvgazettemail.com, Facebook.com/erinbeckwv, 304-348-5163 or follow @erinbeckwv on Twitter.