Feminist Law Professors

Following up on my previous post, here is another interesting case in a similar vein: State v. Wright, 563 S.E.2d 311 (S.C. 2002). In Wright, Todd Wright was convicted of criminal domestic violence of a high and aggravated nature. One of the aggravating factors alleged in the indictment against him was “a difference in the sexes of the victim and the defendant,” which led to the imposition of a more severe sentence.

In rejecting Wright’s ensuing Equal Protection appeal, the Supreme Court of South Carolina cited to State v. Gurganus, 250 S.E.2d 668 (N.C.App. 1979), Michael M. v. Superior Court of Sonoma County, 450 U.S. 464 (1981), and Buchanan v. State, 480 S.W.2d 207, 209) (Tex. 1972), in which the Supreme Court of Texas held that a “statute making assault or battery committed by adult male on an adult female an aggravated assault did not deny equal protection since ‘[i]t is a matter of common knowledge, and a proper subject for judicial notice, that women, as a general rule, are of smaller physical stature and strength than are men.'” The Supreme Court of South Carolina then concluded:

We find that the “difference in gender” aggravator is legitimately based upon realistic physiological size and strength differences of men and women such that it does not violate equal protection. Accord Gurganus, supra. Cf Schlesinger v. Ballard, 419 U.S. 498, 508…(1975) (different treatment of men and women reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated); Rostker v. Goldberg, 453 U.S. 57, 72-83… (1981) (holding that draft registration applicable only to men was justified because women are excluded from combat).

That said, Chief Justice Toal concurred in the result, concluding, inter alia, that while the Supreme Court of South Carolina had previously

recognized that some gender-based classifications which realistically reflect that men and women are not similarly situated can withstand equal protection scrutiny on occasion, it clarified that distinctions in the law which were based on “old notions” that women should be afforded “special protection” could no longer withstand equal protection scrutiny.…

In my opinion, this “difference in gender” aggravating circumstance is a distinction that perpetuates these “old notions.” There is no logical purpose for it except to protect physically inferior women from stronger men; a purpose based on out-dated generalizations of the sexes no longer favored in legal analysis….Similarly, the cases relied upon by the majority are based on out-dated generalizations of the sexes no longer favored….

Deterring domestic violence is more efficiently and appropriately accomplished through other aggravators, such as the “great disparity in ages or physical conditions of the parties” and “infliction of serious bodily injury” aggravators. In many cases, there may be a great disparity in strength between a male and a female, but if there is not, there is no reason why a difference in gender should serve as an aggravating circumstance to “protect” women to the detriment of men. Therefore, I would find that the “difference in the sexes” aggravating circumstance violates equal protection because it fails to substantially relate to the government objective of preventing domestic violence.

Again, I’m no Equal Protection expert, so I don’t know who has the better of the issue, but this certainly seems like an issue ripe for a law review article or note.

-Colin Miller

Eugene Volokh has an interesting post up over at The Volokh Conspiracy. The post discusses G.S. § 14-33(c)(2), which provides that

Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she:…(2) Assaults a female, he being a male person at least 18 years of age…

As Professor Volokh notes, while this crime, a Class A1 misdemeanor, is punishable by up to 60 days incarceration for a first time offender, an otherwise similar assault by (1) a male against a male; (2) a female against a male; or (3) a female against a female is a Class A2 misdemeanor, punishable by only up to 30 days incarceration. He finally notes that in State v. Gurganus, 250 S.E.2d 668 (N.C.App. 1979), the Court of Appeals of North Carolina upheld this crime against an Equal Protection challenge, concluding, inter alia, that

We base our decision…upon the demonstrable and observable fact that the average adult male is taller, heavier and possesses greater body strength than the average female….We take judicial notice of these physiological facts, and think that the General Assembly was also entitled to take note of the differing physical sizes and strengths of the sexes. Having noted such facts, the General Assembly could reasonably conclude that assaults and batteries without deadly weapons by physically larger and stronger males are likely to cause greater physical injury and risk of death than similar assaults by females. Having so concluded, the General Assembly could choose to provide greater punishment for these offenses, which it found created greater danger to life and limb, without violating the Fourteenth Amendment.

We recognize that classifications based upon average physical differences between the sexes could be invalid in certain situations involving equal employment opportunity, participation in sports and other areas….We believe that an analytical approach taking into account such average differences is an entirely valid approach, however, when distinguishing classes of direct physical violence. This is particularly true where, as here, the acts of violence classified are all criminal when engaged in by any person whatsoever and have no arguably productive end….Certainly some individual females are larger, stronger and more violent than many males. The General Assembly is not, however, required by the Fourteenth Amendment to modify criminal statutes which have met the test of time in order to make specific provisions for any such individuals. The Constitution of the United States has not altered certain virtually immutable facts of nature, and the General Assembly of North Carolina is not required to undertake to alter those facts. G.S. 14-33(b)(2) establishes classifications by gender which serve important governmental objectives and are substantially related to achievement of those objectives. Therefore, we hold that the statute does not deny males equal protection of law in violation of the Fourteenth Amendment to the Constitution of the United States.

I’m no Equal Protection expert, so I have no idea whether this analysis holds water, but it is certainly interesting. Is anyone aware of any similar criminal laws, and do any Equal Protection experts have any thoughts about the constitutionality of this crime?

-Colin Miller