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Advocates say longer sentences ineffective for Huntington hate crimes

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By Erin Beck

In West Virginia, some people feel more welcome than others.

Last week, Robbie Campbell didn't feel at home in Huntington when someone scrawled "NO FAG ALLOW" in black marker on Campbell's front door, stole a rainbow flag and splashed red paint across the porch.

In April, two gay men didn't feel very accepted on the streets of Huntington either, when then-Marshall University football player Steward Butler allegedly punched them after he saw them kiss.

The state's civil rights law doesn't make the lesbian, gay, bisexual and transgender population feel like West Virginia is tolerant either, according to civil rights advocates.

West Virginia's Human Rights Act includes protections based on race, religion, color, national origin, ancestry, gender, age, blindness, disability and political affiliation.

It does not include protections based on sexual orientation or gender identity.

As a result, Robbie Campbell's case is only being investigated as destruction of property.

And in the Steward Butler case, prosecutors had thought they found a work-around. They charged Butler with two felony civil-rights violations based on gender, saying he would not have attacked if one of the men had been a woman, but now, prosecutors and the defense have decided to send a certified question to the state Supreme Court instead, asking whether a federal decision granting protections based on sexual orientation extends to the state.

For years, civil rights advocates in the state have worked to encourage legislators to add sexual orientation and gender identity to the Human Rights Act.

Andrew Schneider, executive director of LGBT advocacy group Fairness West Virginia, said because those two categories are not included in the act, the law sends the message that the LGBT population is "less worthy of protection," especially after a crime like the recent vandalism in Huntington.

"It's not just about every day, ordinary vandalism," he said. "It's the kind of vandalism that strikes fear in a community."

But next legislative session, some of those same civil rights advocates are planning a new approach.

Under legislation Fairness West Virginia and the American Civil Liberties Union of West Virginia plan to present to legislators, Steward Butler, if guilty, wouldn't face a longer sentence because he committed a hate crime.

He could still face jail time for battery charges. But for violating the couple's civil rights, he might have to do community service instead, and/or meet with the couple and a mediator.

The response would be situation-specific. If whoever vandalized Campbell's home is found, maybe they'd have to paint the porch.

It's called restorative justice, and the idea is to repair the harm caused by the criminal behavior.

"Rather than putting someone in jail and throwing away the key, we are looking for approaches that might actually heal the community and rehabilitate the offender," Schneider said.

Jennifer Meinig, executive director of the ACLU of West Virginia, said all parties would be involved in deciding the appropriate response.

"You're hoping to heal a community rather than simply punish someone for doing something wrong," she said.

She noted that prison isn't a likely place for someone who committed a hate crime to learn empathy and make long-term changes.

"It doesn't really get to the root of the problem," she said.

But, interaction with the victim, and the community that was shook by the crime, might, advocates said.

"We certainly don't make people better by keeping them behind bars longer," Schneider said. "We have to think of other solutions to this endemic problem in our society, one that continues to haunt us as evidenced by the vandalism that occurred in Huntington."

Advocates would like to see restorative justice become the response to all types of hate crimes, not just those committed based on sexual orientation and gender identity.

Of course, the first step will be actually getting sexual orientation and gender identity into the Human Rights Act in the first place.

In May, Steward Butler was indicted on two felony civil rights violations and two counts of battery. He allegedly punched two men after he saw them kiss in Huntington, according to a criminal complaint filed in Cabell County Magistrate Court, and he was dismissed from the Marshall University football team following the arrest.

Prosecutor Sean "Corky" Hammers said at the time his office was choosing to charge Butler with civil rights violations, even though sexual orientation is not included in the state's Human Rights Act, because Butler likely would not have attacked if one of the men had been a woman.

But now, Assistant Prosecutor Lauren Plymale says that he may not be charged with those violations, depending on the response of the state Supreme Court. She and the defense are working on coming up with a list of agreed-upon facts to include in a certified question to the state Supreme Court, asking whether a federal decision granting protections based on sexual orientation extends to the state.

She was referring to a June decision in which the Equal Opportunity Employment Commission decided that LGBT discrimination in the workplace classified as sex discrimination.

"'Sexual orientation' as a concept," the commission stated, "cannot be defined or understood without reference to sex."

Some legal experts have said the decision could extend to more forms of discrimination than employment, such as housing.

Plymale said that parties in a criminal case can also look to other areas of the law, including employment, for guidance.

Jamie Lynn Crofts, an attorney for the ACLU, said the EEOC decision wouldn't be binding on West Virginia, but courts can look to the decision for guidance, including in matters of criminal law, that would be "persuasive" versus "required."

"There is a growing trend across the country in administrative proceedings like the EEOC, and also in court, to find that discrimination because a man is dating a man, versus dating a woman, is discrimination on the basis of sex," she said.

Hammers suggested that, if the state Supreme Court doesn't conclude there are protections for sexual orientation, maybe more people should pressure the Legislature.

"It appears that we have crimes in our community that are based solely on sexual orientation," he said. "That's certainly a class of people that deserves the same protections as every other class in the hate crimes statute."

On Nov. 25, Robbie Campbell found the vandalism.

The state's Human Rights Act does include enhanced punishments for "damage to, destruction of or trespass on property" and "actual or threatened physical force or violence."

However, Huntington Police Chief Joe Ciccarelli noted that because state law doesn't include specific protections for the LGBT population, it's only being investigated as destruction of property.

"I think it clearly is a threat," Ciccarelli said.

Campbell would like to see the law updated somehow.

The vandalism served as a reminder that even though same-sex marriage is the law of the land and attitudes are changing, hatred is still out there.

"We have come a long way in West Virginia, but we still have a long way to go," Campbell said.

Because homophobia and transphobia still exist, some people don't feel like they can relax and be themselves.

Campbell, who is gender non-binary, laments getting "too comfortable" before walking on the porch and finding the destruction, and is even thinking about buying a gun for protection. The feeling of unease can be traced back to when, as a child, Campbell was regularly harassed and ridiculed.

The writing on the door wasn't the first time someone used the word "fag."

Teachers even called Campbell that at school. Campbell describes being told to move with a partner from an apartment complex because they weren't a "family unit." A hotel once fired Campbell for wearing earrings.

It was popular among some at the time to wear one earring to signal sexual orientation.

"I never could keep it straight, which side was which," Campbell said. "I just pierced both [of] mine."

Campbell was out before young people were tolerant of sexual orientation.

"I don't have the ability to be someone else."

Campbell did try, somewhat, to fit in; growing facial hair, cutting fingernails, no more arched eyebrows.

"It was a joke," Campbell said. "My light shines on."

Campbell is trying to make something positive out of the experience.

Many community members have reached out. A rally took place at 11 a.m. Friday at the Cabell County Courthouse in support of investigating the case as a federal hate crime.

Campbell plans to paint the porch the same color as the paint thrown, "so when they walk past, that'll just be a smack in their face."

Campbell also plans to put another rainbow flag up, although the pole they took will have to be replaced.

"I'm running out of poles, but I have plenty of flags."

Reach Erin Beck at erin.beck@wvgazettemail.com, 304-348-5163, Facebook.com/erinbeckwv, or follow @erinbeckwv on Twitter.


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