West Virginia

A hate crime is generally defined as a crime against a person or property that is motivated by bias, prejudice, or hatred toward the personal, or perceived personal, characteristics of a victim, including: race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.

The definition of a hate crime differs from state to state, but always includes an underlying crime.[i] Several states do not have separate statutes for crimes motivated by hate, but at a minimum, most states have enhanced penalties for crimes motivated by hatred based upon the above characteristics.  Furthermore, if state and local authorities do not sufficiently protect victims of hate crimes, then the federal government may step in and prosecute hate crime violations.

In West Virginia, a hate crime is defined as “violence, or intimidation by threat of violence” committed against a person or their property because of one or more of the following characteristics of the victim: (1) race; (2) color; (3) religion; (4) ancestry; (5) national origin; (6) political affiliation; or (7) sex.”[ii]

A hate incident is based on the same behaviors and motivations as a hate crime, but does not rise to the level of a crime.  For example, you may be a victim of hate speech, which, depending on the circumstances, may not constitute a crime (and may be protected under the First Amendment), but which may constitute a hate incident.

[i] Examples of underlying crimes include: assault, battery, destruction of property, threats, rape, murder, arson, robbery, and burglary.  This list of criminal offenses is not exhaustive, however, and other criminal offenses may also be considered hate crimes.

[ii] W. Va. Code §61-6-21(a).

If you think you may be a victim of a hate crime or hate incident, you should immediately take the following three steps:

STEP 1 – – REPORT IT

For emergencies:

• If you (or others) have been injured or fear for your safety, call 911 immediately.
• If you are uncomfortable calling 911 or local law enforcement, consider calling the local United States Attorney, the local FBI Field Office, or the State Attorney General’s office to report the offense. Understand, however, that these authorities may not respond as quickly as local law enforcement responding to a 911 call.
• Obtain medical attention if necessary.

For non-emergencies:

• If a non-emergency, call your local police station, or visit your local police office or federal law enforcement office as soon as possible to report the offense.
• If you are not comfortable calling law enforcement, consider calling a trusted community or legal services organization. You can call 1-844-9-NO-HATE to be connected to a local organization.

Follow-up and key things to remember for both emergencies and non-emergencies:

• Ensure that a police report is filed regarding the offense and obtain a copy of the report (which should include the responding officer’s name and badge number).
• Request that the police report indicate that the offense may have been a hate crime or a hate incident.
• File the report with local law enforcement, the State Attorney General’s office, and federal law enforcement.
• For additional support and documentation, also report it to 844-9-NO HATE.
  

STEP 2 – – GATHER INFORMATION

• Preserve any evidence and take photographs of the evidence. For example, do not remove graffiti but instead, take photographs of the graffiti.  Do not delete electronic correspondence (e.g., text messages, emails, social media posts, etc.), including your own.  If you decide to involve law enforcement, you should preserve all evidence as directed by law enforcement.
• Document the experience in writing as soon as possible after the offense, including any specific words used during the offense. Record all your thoughts.
• Record any information you can remember about the perpetrator, including approximate age, height, weight, gender, race, clothing and any other distinguishing characteristics.
• Obtain contact information (names, addresses, and telephone numbers) of any other victims or witnesses to the offense.

STEP 3  — GET ADDITIONAL SUPPORT

• Find support in the community — through friends and family, victims’ organizations, advocacy or community groups, religious organizations, legal groups, professional counseling, etc.
• Consider seeking legal representation.
• Remember, you can always contact 1-844-9-NO-HATE.

Yes, West Virginia does have a state hate crime law.  Section 61-6-21 of the West Virginia Code prohibits any person from interfering with the civil rights of another “because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex.”[i]  In other words, if someone interferes with your civil rights by force, threat, or intimidation, or if someone knowingly defaces, damages or destroys your property because of one of the above mentioned protected classes, then that person may be guilty of a hate crime under West Virginia law.

[i] W. Va. Code §61-6-21(b).

West Virginia’s hate crime law protects any person who is the victim of a crime because of his or her:

• Race;
• Color;
• Religion;
• Ancestry;
• National Origin;
• Political Affiliation; or
• Sex.

Note: West Virginia’s hate crime law does not protect a person who is the victim of a crime because of his or her physical or mental disability, gender identity, or sexual orientation. The Supreme Court of Appeals of West Virginia held that the term “sex” in the hate crime statute is plain and unambiguous and does not include sexual orientation.

West Virginia has two laws that you may turn to if someone damages your property because of bias, prejudice, or hatred.  First, West Virginia’s hate crime law, discussed under above, provides protection to your real and personal property.  The hate crime law prohibits any person from committing violence or intimidation by threat of violence against any person’s property because of their protected class and further prohibits conspiring with another person to willfully cause property damage.”[i]  Note that this is a criminal law, and any claims under this code must be brought by a prosecutor.

The second law is the West Virginia Human Rights Act, which permits the Attorney General to bring a civil action for property damage, destruction, or trespass promulgated by an individual’s protected class. [ii]

Note: Unlike West Virginia’s hate crime law, the West Virginia Human Rights Act includes disability as a protected class. Like the hate crime law, the Human Rights Act does not include gender identity or sexual orientation as a protected class.

[i] W. Va. Code §61-6-21(c).

[ii] W. Va. Code §5-11-20.

West Virginia’s hate crime law, W. Va. Code §61-6-21(a), described under above, addresses attacks motivated by bias, prejudice, or hatred.  Again, under this law, it is unlawful for any person to interfere with your civil rights by force, threat, or intimidation.In addition, W. Va. Code §61-6-21(d), provides for penalty enhancement to increase punishments for perpetrators of common crimes motivated by bias, prejudice, or hatred.  For example, if you were physically attacked by another individual, that would mostly likely be considered battery—a common crime.  But, if you were attacked by another individual and that individual attacked you because of your race or nationality, then that battery may carry with it a hate crime penalty enhancement, and your attacker may face a longer than normal prison sentence.  Such motivation when committing a felony or misdemeanor is considered a circumstance in aggravation of the crime when imposing sentence.

Note that this is a criminal law, and any claims under these sections of code for penalty enhancement must be brought by a prosecutor.

West Virginia does not have a separate, specific law protecting religious groups from hate motivated acts beyond the hate crime law described under Section 61-6-21, which protects, among other classes of individuals, those with a specific religious belief or practice.

No, this type of action would likely fall under the general hate crime law established under Section 61-6-21, if motivated by the individual’s protected class.

You can contact the State Attorney General’s Civil Rights Division: (304) 558-0546; Your local District Attorney’s Office (County listing online, or the United States Attorney’s Office Victim/Witness Assistance Program in your district listing online).  You can also contact the Stop Hate Hotline at 1-844-9-NO-HATE.

Yes, West Virginia has a civil law relevant to hate crimes and hate incidents entitled the West Virginia Human Rights Act.  This law provides a right to be free from violence, intimidation, or discrimination and provides a procedural tool that allows an individual to file a private lawsuit.  Specifically:

• 5-11-2 of the law declares that all West Virginia citizens are entitled to equal opportunity for employment, equal access to places of public accommodations, and equal opportunity in the sale, purchase, lease, rental, and financing of housing accommodations or real property without regard to race, religion, color, national origin, ancestry, sex, age/familial status, blindness, or disability.
• 5-11-9 prohibits violence or intimidation by threat of violence committed against a person or property because of a person’s certain characteristics.
• 5-11-10 permits a private individual the ability to file with the West Virginia Human Rights Commission a complaint alleging unlawful discriminatory practices. If the Commission issues the individual a right to sue, then the individual is granted, under § 5-11-13, the ability to bring a civil action in the county where the respondent resides.
• 5-11-20 permits the Attorney General the ability to bring a civil action for actual or threatened physical force or violence against any person, or property damage, destruction, or trespass promulgated by the individual’s protected class. This section grants the Attorney General the ability to inflict injunctive or other equitable relief and a civil penalty of no more than $5,000 per violation.

There are a number of other civil laws that you can use to bring a case against someone who physically or emotionally injures you.  This is true even if the person’s actions do not rise to the legal definition of a hate crime or hate incident.  These other civil laws, or causes of action, are generally known as torts.  A tort is a wrongful act that results in legal liability.

In West Virginia, if someone intentionally injures you or your property, you may be able to sue that person for damages using any of the following tort causes of action:

• Assault – Assault is defined as an unlawful attempt to commit a violent injury to another person or to unlawfully commit an act that places another person in reasonable apprehension of immediate injury. A good example of assault without actual bodily injury is when someone uses a realistic toy gun to threaten another person.
• Battery – Battery is defined as unlawfully and intentionally making physical contact of a provoking nature to another person or unlawfully and intentionally causing physical harm to another person. An example of a battery is when someone uses a real gun and shoots another.  Another, less extreme, example of a battery is when someone punches or kicks another.
• False Imprisonment – False imprisonment is defined as “the illegal detention of a person without lawful process.”[i] An example of false imprisonment would be if someone locked you in a room and you were unable to escape.
• Intentional Infliction of Emotional Distress (“IIED”) –To prevail on a claim for intentional or reckless infliction of emotional distress, plaintiff must show: (1) that defendant’sconduct was atrocious, intolerable, and so extreme and outrageous as to exceed bounds of decency; (2) that defendant acted with intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his/her conduct; (3) that actions of defendant caused plaintiff to suffer emotional distress; and (4) that emotional distress suffered by plaintiff was so severe that no reasonable person could be expected to endure it. [ii]  An example is someone having severe and emotional distress due to being falsely told that their spouse has died in an accident.
• Trespass on Property – To prove criminal trespass the plaintiff must show that the defendant knowingly entered a structure or conveyance without being authorized, licensed or invited.[iii] An example of trespassing would be if an unauthorized person stayed on your property after being asked to leave.

Note: Private citizens can bring these civil tort claims.

[i] Beachum v. White, No. 11-1469, 2013 WL 3185152, at *5 (W. Va. June 24, 2013).

[ii] Travis v. Alcon Labs., Inc., 202 W. Va. 369, 375, 504 S.E.2d 419, 425 (1998).

[iii] W. Va. Code § 61-3B-2.

Contact your local bar association or 1-844-9-NO HATE.

The following organizations are key providers of legal assistance for victims of hate crimes and discrimination:

West Virginia Human Rights Commission
Phone: 304-558-2616 or 888-676-5546
http://www.hrc.wv.gov

Attorney General’s Office
http://www.ago.wv.gov
Main Office: 304-558-2021
Civil Rights Division: 304-558-0546

Local Human Rights Commissions
City of Beckley: http://www.beckley.org/departments/human-rights/
Phone: 304-256-1768

City of Morgantown: http://www.morgantownwv.gov/government/commissions/human-rights-commission/
Phone: 304-225-3582

City of Weirton: http://www.cityofweirton.com/244/Human-Rights-Commission
Phone: 304-797-8844

City of Wheeling: http://www.wheelingwv.gov/citygovernment.php?id=200
Phone: 304-234-3609

The State Bar of West Virginia
Legal Aid Services directory can be found at: http://www.wvlawyerreferral.org/help/legal-aid-of-wv/

Legal Aid of West Virginia
http://www.lawv.net/Resources/Other-Resources
Phone: 1-866-985-2948

If you would like additional information or need additional help, please visit the Communities Against Hate resource page at www.communitiesagainsthate.org. If the information you are seeking is not on the resource page or if you need immediate help, please contact 844-9-NO-HATE.