- Associated Press - Friday, May 13, 2016

CHARLESTON, W.Va. (AP) - West Virginia law doesn’t consider violence or threats of violence based solely on a victim’s sexual orientation to be a hate crime, a circuit judge ruled Friday.

The decision allows hate crime charges to be dropped against former Marshall University football player Steward Butler, who’s accused of assaulting two gay men after seeing them kiss on a city street.

In his ruling, Cabell County Circuit Court Judge Paul Farrell wrote that state lawmakers have never acted to protect sexual orientation under the state civil rights law.

Farrell wrote that his decision was partly “in light of the legislature’s careful crafting of the statute at issue coupled with its repeated opportunities to amend it to include sexual orientation if it so desired.”

The West Virginia law reads: “All persons within the boundaries of the state of West Virginia have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.”

Based on a review of other states’ laws, Farrell wrote that “sex” and “sexual orientation” are two distinct categories of possible discrimination.

He mentioned numerous other states that specifically protect sexual orientation, including California, Colorado, Delaware, Florida, Hawaii, Illinois, Louisiana and Maryland.

Butler pleaded not guilty to two counts of felony civil rights violations and two counts of misdemeanor battery in the April 2015 alleged incident. The battery charges still stand.

According to charges, Butler got out of a car in Huntington when he saw two men kissing, used a homophobic slur and then struck the victims.

The hate crime charges won’t be dismissed for 60 days to give prosecutors a chance to appeal to the state Supreme Court.

In February, the state Supreme Court declined to hear a request by Farrell on whether the law protected against violent actions based only on sexual orientation.

Prosecutors could not immediately be reached Friday.

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