Does a Law Punishing More Severely a Male’s Assault of a Female Violate Equal Protection?

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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

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