The alleged Jan. 1 rape of a State College woman will not be prosecuted under the state's new gay-inclusive hate crime legislation because rape is not included in the act, the prosecuting attorney said.

The woman, who is a lesbian, testified in court that after the assault, Russian immigrant Babour Abdourakhmanov, 35, told her that she had finally had a "real man."

"[Legislators] didn't include rape as defining a hate crime," Centre County Assistant District Attorney Lance Marshall said.

Marshall said the act covers cases of arson, trespass, harassment by communication or address, criminal mischief, institutional vandalism and any type of assault, barring sexual assaults, which are prosecuted separately.

Marshall is prosecuting Abdourakhmanov on charges of rape, involuntary deviate sexual intercourse, sexual assault and aggravated indecent assault.

"The victim doesn't want this prosecuted as a hate crime," he said. "She's trying very hard to keep her name out of the media. The more media attention her case gets, the more difficult it will be to keep her name out of the media."

The Pennsylvania House passed legislation in late November to amend the state's Ethnic Intimidation Act by including actual or perceived sexual orientation and gender identity into existing law.

Pennsylvania is among 27 states and the District of Columbia that have extended hate crimes protection to gays, lesbians and bisexuals, and one of five states to include gender identity.

Peggy Lorah, director for Penn State's Center for Women Students, said she believes this would have been the first test of the new law, if prosecuted. She added that interpretation of law as it pertains to rape might be open to debate.

"I think that you could get different prosecutors to respond differently depending on who you ask and how the question was asked," Lorah said. "I think that the folks at the district attorney's office are looking at cases from a different angle than victim advocate groups."

She added that anytime someone is raped, it is a hate crime, whether or not it is clearly defined by the law as such.

"The purpose of any sexual assault or rape is to debase or humiliate the victim," Lorah said.

Most troubling to Lorah, she said, is the local media's reporting of the victim's sexual orientation.

"The reason she was raped was because she was a woman," she said, adding that the victim's wish not to see her case tried as a hate crime makes sense.

"I'm sure she's not happy being identified as a lesbian," Lorah said. "That can take away from her sense of personal safety. Victims always have the right to decide how a case goes forward."

Allison Subasic, director of the LGBTA Resource Center, said she also supports the victim's choice.

"That is totally up to her as a victim and I totally respect her decision," Subasic said.

Subasic said she hopes the law will eventually be tested.

"I hope that when cases come up when incidents of hate crime do occur that the law does stand up and does protect all members of society," she said.

Abdourakhmanov remains in Centre County Prison on $50,000 bail while he awaits arraignment Feb. 3.

The Associated Press contributed to this report.