What constitutes a 'hate crime' in West Virginia?

West Virginia’s criminal code contains certain “elevator” statutes that can make conviction for certain crimes even more serious. Among these is the civil rights statute, which is a form of anti-hate crime legislation.

The statute’s purpose is to punish offenders who targeted their victims based on who they are. The statute specifically protects individuals from violence and violent threats based on their “race, color, religion, ancestry, national origin, political affiliation or sex.”

Though the text does not mention violence against someone due to their sexual orientation, prosecutors in a West Virginia county are attempting to pursue hate crime charges against a former member of the Marshall University football team in connection with an April incident. The defendant is accused encountering two men kissing on the street, uttering a homophobic slur and striking the men. Cabell County prosecutors have charged him with felony civil rights violations, as well as misdemeanor assault.

Likely due to the wording of the civil rights statute, the prosecution contends that the defendant assaulted the men due to their “sex,” not their sexual orientation. They say that the defendant would not have done anything had one or both of the victims been a woman.

The judge presiding over the case has asked the state Supreme Court to determine whether West Virginia’s civil rights statute covers incidents of this nature. Trial has been tentatively set for Jan. 26, The Herald-Dispatch reports.

When applied, the civil rights statute can turn a misdemeanor into a felony, which could mean prison time, a larger fine and other stiff penalties. Having an experienced defense attorney on your side when charged with a hate crime is that much more important.

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