A DISCUSSION OF LAW AND JOURNALISM

Men Hitting on Women

By Ryan Morrison

Unless you’re a terrible human being, chances are you’re against men hitting women. Sure, you are also probably against anyone hitting anyone, but a more extreme emotion gets triggered when you hear about a husband beating his wife or a celebrity hospitalizing his girlfriend. So then, should we be able to punish a man who hits a woman more severely than same-sex or female-on-male assaults? North Carolina certainly thinks so.

But Professor Eugene Volokh of the UCLA School of Law, who runs the über-popular legal blog The Volokh Conspiracybelieves the Tarheel State assault statute may conflict with the Supreme Court’s interpretation of the Equal Protection Clause on gender classification. The state seems to be relying on a North Carolina Court of Appeals case from 1979, State v Gurganus, as its rationale for upholding the sentencing disparity. But the 1979 ruling may be inconsistent with two Supreme Court cases, one in 1976, Craig v. Boren and one in 1996, United States v. Virgina.

Professor Volokh raised an interesting issue — but then left it dangling.  May a state punish men more severely than women? LASIS takes a closer look.  

In Craig v. Boren, Justice Brennan stated that a statute that discriminates by sex will generally be unconstitutional. To be upheld, such a statute would have to secure a very important state goal and the classification by gender must be necessary to achieve that goal. This left the North Carolina Court of Appeals enough wiggle room to reach its decision in Gurganus. In Gurganus, the court stated that because the “the average adult male is taller, heavier and possesses greater body strength than the average female,” it is “important” to try to prevent men from assaulting women more-so than same-sex or female-on-male assaults. Deterrence is an obvious justification for punishment, so the rationale that a longer prison sentence, even one longer by just 30 days, deters more effectively is sound enough to satisfy the broad rule created in Craig.

It’s as if you were standing in a convenience store and were hungry but had no money. You lack both funds and the moral fiber that would prevent you from committing acts of thievery; that’s fine, for this simulation we won’t judge you. You recall a law that says there is a 24-hour jail sentence for stealing Twizzlers, but a month-long sentence for stealing Snickers. Ten times out of 10, unless you’re really into Snickers, you would take the Twizzlers. (And if you didn’t recall or even know about the different jail sentences this time around, tough luck.  You’ll still get a stiffer sentence.  And you’ll think twice about stealing that Snickers bar next time.)  That’s the same thought process used by North Carolina to punish men who hit women more severely.

The Supreme Court looked at classification by sex again in the Virginia case. The Virginia Military Institute, a public college, accepted only male applicants. Several women who wished to attend sued, asserting that the refusal even to consider their applications was unconstitutional. Ruling that VMI must give women the opportunity to enroll, Justice Ginsberg wrote that justification for the distinction between men and women under the law  “must be genuine…and it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”

That changes things, doesn’t it? Isn’t saying most men are stronger than most women an “overbroad generalization?” What if the woman was a six-foot, Golden Glove prize fighter and the man was a 90-pound computer programmer? (No offense, of course, to you programmers out there, but I worked as one for a bit and we weren’t winning any fighting competitions.) Isn’t generalizing all females as “weak,” even if only “weaker than men,” exactly what the court in Virginia was trying to prevent?

Well, maybe not. Justice Ginsberg added one line to the Virginia opinion that may distinguish the North Carolina statute from the Virginia practice. She wrote that while supposed “inherent differences” are no longer accepted as a ground for race or national origin classification, “physical differences between men and women are enduring.”

That’s the line we’ve been looking for, folks! Justice Ginsberg’s rule shows when a law may be based on sex differences. If North Carolina enacted a statute that said women can’t drive until 30, because women are terrible drivers, that would be unconstitutional. The court was very clear in its Gurganus opinion, however, that its decision was based on clear physical differences (i.e., the average size and weight of men vs. women), which are “enduring.” The statute would then seemingly fit within the limits proposed by Virginia.

To further the point that generalizations about sex differences are sometimes acceptable to the Supreme Court, we need only look back to last June, when the court decided Flores-Villar v. United States. This case looked at a difference in citizenship requirements for children born in the U.S. depending on which parent was the American citizen. Children had a much easier time becoming fully fledged fourth-of-July-celebrants if it was their mother, rather than the father, who was the citizen.

The court split 4-4 on the matter (Justice Kagan recused herself), allowing the District Court’s opinion that the difference is constitutional to stand. Although an evenly-divided opinion does not set a precedent, the result suggests that the Court may be close to modifying Virginia, because the citizenship law was not based on physical differences but on old stereotypes about mothers raising children

Professor Volokh, if our justice system allows gender differences to be used to determine citizenship, it can almost certainly classify the sexes when it comes to assault.

And, when we think about it, that’s OK.

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One Response

  1. Benjamin says:

    Another interesting article

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