North Carolina Crime of “Assault on a Female”

North Carolina, it turns out, makes “[a]ssault[ing] a female” a class A1 misdemeanor, if the attacker is “a male person at least 18 years of age”; female-on-male, male-on-male, and female-on-female assaults are generally class 2 misdemeanors. This can translate into a substantial difference in sentencing — for instance, someone who has no prior convictions would face up to 60 days in jail for a class A1 misdemeanor, but only up to 30 days for a class 2. And the statute seems to be used often; searching for “assault #on #a female” & date(= 2010), for instance, uncovered 37 appellate cases just last year.

In State v. Castosa (2005), the North Carolina Court of Appeals rejected an Equal Protection Clause challenge to the statute, citing State v. Gurganus (N.C. Ct. App. 1979), which did the same. Here’s the 1979 court’s reasoning:

[Under the Supreme Court’s] test set forth in Craig and reiterated in Goldfarb …[,] [f]irst, the classification by gender must serve “important” governmental objectives. Second, the classification by gender must be “substantially” related to achievement of those objectives. We find that G.S. 14-33(b)(2) meets both these requirements and is in no way violative of the letter or spirit of the Fourteenth Amendment.

In passing upon the constitutionality of the challenged subsection of the statute, we do not examine it in isolation. Instead, the challenged subsection must be viewed in context and as a part of the entire and integrated whole of the statute in which it is found. G.S. 14-33, in its entirety, prohibits varying types of assault, batteries and affrays as follows:

§ 14-33. Misdemeanor assaults, batteries, and affrays, simple and aggravated; punishments. — (a) Any person who commits a simple assault or a simple assault and battery or participates in a simple affray is guilty of a misdemeanor punishable by a fine not to exceed fifty dollars ($50.00) or imprisonment for not more than 30 days.

(b) Unless his 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 misdemeanor punishable by a fine, imprisonment for not more than two years, or both such fine and imprisonment if, in the course of the assault, assault and battery, or affray, he:

(1) Inflicts, or attempts to inflict, serious injury upon another person or uses a deadly weapon; or

(2) Assaults a female, he being a male person over the age of 18 years; or

(3) Assaults a child under the age of 12 years; or

(4) Assaults a law-enforcement officer or a custodial officer of the State Department of Correction, while the officer is discharging or attempting to discharge a duty of his office.

… We find that the subsection is substantially related to this important objective [of physical integrity of the citizens of the State].

In reaching this conclusion, we do not find it necessary to rely upon the numerous works documenting and attempting to quantify various social factors and which tend to establish that men, particularly in conjugal settings, assault women more frequently and more violently than women assault men, while women more frequently submit to such violence. We base our decision instead 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 don’t think this is consistent with the Supreme Court’s Equal Protection Clause cases, both before 1979 (Craig v. Boren (1976)) and since (United States v. Virginia (1996)); but North Carolina courts obviously disagree with me.