Does an Aggravating Factor Based on “a Difference in the Sexes of the Victim and the Defendant” Violate Equal Protection?

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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

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One Response to Does an Aggravating Factor Based on “a Difference in the Sexes of the Victim and the Defendant” Violate Equal Protection?

  1. m Andrea says:

    Eh this seems like an mra argument. Look honey those evil women are finally being treated equally, which impinges upon my right to better-than-equal treatment!

    Marginalized groups would like you to notice that they are in fact marginalized in some way. If the law is to truly address that inequality, then the law must first recognize the inequality. In the case of domestic violence, it’s almost always a case of some guy systematically engaging in a pattern of emotional manipulation and abuse, verging on sociopathy which culminates in physical violence upon some female who has been socially conditioned to excuse and accept his prior abuse. His physical violence doesn’t arise in a vacuum, it’s a by-product of his escalating abuse.

    This is merely a way of rectifying that imbalance and I wonder why anybody would have a problem with it. Do you also complain when marginalized groups are treated unfairly or do you only complain when men don’t get to beat up their girlfriends with impunity? Or do you only focus on outliers — the much smaller number of women who are abusive to their boyfriends? It’s exceedingly rare for a woman in a het relationship to be physically stronger than her “partner” after all, and humans are usually only repeatedly abusive to a specific individual when a power differential exists.

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