HUNTINGTON, W.Va. — The West Virginia Supreme Court has chosen not to rule on whether a former Marshall University football player accused of assaulting two gay men after he saw them kissing on a city street can be charged with a hate crime.

The Herald-Dispatch reports ( ) the order was issued Feb. 9 in Steward Butler’s case.

Butler has pleaded not guilty to two counts of felony civil rights violations and two counts of misdemeanor battery stemming from the alleged April incident.

In December, the court was asked to decide whether state code protects an individual’s civil rights if the crime is based solely upon the victim’s sexual orientation.

Prosecutors contend the violation is based on the victim’s sex, not sexual orientation.

Cabell County prosecutor Sean Hammers says the charges will remain unchanged.

Information from: The Herald-Dispatch,