A recent opinion by the Appellate Division of the District Court of the Virgin Islands addresses the constitutionality of the Virgin Islands aggravated assault statute. But far from wading into a scrum of technical constitutional analysis, the Appellate Court takes the Virgin Islands government to task for failing to muster any evidence on the statute’s behalf.

The case, Simmonds v. Virgin Islands, No. 2008-0029, (D.V.I. App. Div. Jul. 29, 2011), involves a challenge to the constitutionality of the statute by an adult male who was convicted of assaulting his wife during an episode of domestic violence. The statute provides that "[w]hoever commits an assault and battery…being an adult male, upon the person of a female or child, or being an adult female, upon the person of a child" is guilty of aggravated assault and battery. 14 V.I.C. § 298(5). The appellant challenged the constitutionality of the statute, arguing that it discriminates against males because it imposes enhanced penalties for male-on-female violence, and not male-on-male or female-on-female violence. The Appellate Court correctly identified "intermediate-level scrutiny" as the constitutional standard for gender-based equal protection claims. Under that standard, a statute must serve an important governmental objective and is substantially related to the achievement of those objectives. In other words, there has to be a pretty good reason for the statute to discriminate on the basis of gender.
I remember looking at this statute when I was a law clerk and thinking that it was discriminatory. However, I figured that the statute could be justified on a number of grounds—a recognition by the Virgin Islands legislature that men possess greater upper-body strength than women (and can thus do more damage in a physical altercation), or that men are statistically much more likely to be the aggressors in domestic altercations than women, etc. Whatever you may think of the validity of these arguments, I thought that these would be the justifications that the Virgin Islands government would trot out to show that the statute served an important government objective (reducing domestic violence), and that its provisions were substantially related to that objective (imposing increased penalties on the demographic group that is usually responsible for inflicting the most damage in domestic altercations).
Except that isn’t what happened. In Simmonds, the government apparently punted on the question of the statute’s purpose. Instead, the government compared the Virgin Islands aggravated assault statute to other gender-based statutes that had been found to be constitutional. This did not please the Appellate Court, which noted that, "[i]n the very same cases that the [Virgin Islands] Government cites, statutes employing gender distinctions were successfully defended where the [state] met its burden, by first asserting a legitimate state interest, then arguing facts, legislative history, data, inherent differences and common sense to support the presence of a substantial relationship between the gender distinction and the state’s interest."

In any event, it was clear that the Appellate Court was not going to do the government’s job for it. Rather than hold the statute to be unconstitutional, the Appellate Court sent the matter back to the Superior Court for further fact-finding. This was probably the best outcome and a victory for constitutional analysis. Statutes that discriminate on the basis of gender should be tested to see whether they are relevant in today’s world, or whether they are anachronisms that promote outdated notions of masculinity and femininity. Support for the Virgin Islands aggravated assault statute is probably out there. The Virgin Islands government just has to go find it.