I am a proud, self-proclaimed progressive feminist. What that means is that every day, I advocate for the safety, health and advancement of women and girls worldwide. I challenge pre-determined gender roles and support the right of individuals to live according to their own definition. At a more basic level, however, I believe in equality of the sexes. You know, “anything you can do, I can do better,” and all that jazz. So you’d think I’d be appalled at any law that fundamentally treats women differently from men. Uneasy, yes. Appalled? I’m not so sure.
There’s a law on the books in North Carolina that makes an assault carried out by a man against a woman subject to greater punishment than similar assaults had the aggressor’s sex been reversed. Specifically, the statute provides
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 …
The cases where an assault is carried out by a man against another man, a woman against a woman, or a woman against a man, are considered misdemeanors of Class A2 and carry a sentence of up to 30 days in N.C. The Class A1 misdemeanor, however, will get you locked up for as many as 60 days (if it’s your first offense, more if you’re a repeat offender).
My knee-jerk feminist reaction to this was that this could not be right. Did I really want courts telling us that we were so weak, small, fragile, and delicate that we need the law to go above and beyond existing punishment/deterrent and provide us special treatment? No. I was wary of the slippery slope we could be headed down if we essentially legislate the commonly held view that no matter what, “boys” just don’t hit “girls” but every other permutation is fair game. Remember when a boy had beef with a girl so he’d call his girl-cousin to fight her for him? In the grand scheme of things, most people would find that acceptable and now, at least in N.C., they have the law to back them up.
Soon, my feminist first impressions started to wear off and my lawyer brain kicked in. Is a law like this even legal considering that one of the pillars of the U.S. Constitution is equal protection under the law, AKA the 14th amendment. According to N.C.’s Court of Appeals, the law passes constitutional muster and merely takes notice of the fact that men and women are physically different,
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…. 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.
You can see where the Court was going with their ruling and while I’m left feeling uneasy about it all, it’s not inconsistent with how we deal with other crimes. The severity and punishment for assault, theft, and even murder can vary depending on whether a weapon was involved and how dangerous that weapon happened to be. Punching a clerk in the face while stealing something is viewed differently than pointing a gun at the clerk, even if you never pull the trigger. The idea is that one act has the propensity to cause more harm and should be treated more seriously. It follows, then, that if you believe the weapons men wield simply for harboring XY chromosomes are more harmful than the ones we XX chromosome people carry, then you likely understand the court’s rationale.
I’m still hesitant. Yes, many men are physically larger and stronger than many women but let’s not get it twisted – the occurrence of physical violence perpetrated by women upon men, while significantly less common, is not unheard of. The statute, however, doesn’t allow for adjustments when someone like the Lady of Rage assaults a little guy like Kevin Hart, or if former wrestler Chyna were to attack Michael Cera. It will be difficult to apply the law consistently with the assumptions about size and strength made by North Carolina and that’s where I get hung up. Neither feminist-me nor lawyer-me can get comfy with the idea that men assaulting women is worse than any other permutation of people assaulting each other because us lady-folk are inherently weak and fragile. It’ll be interesting to see whether this law passes scrutiny of higher courts. What do you think? Should men be subject to greater punishment for assaulting women?