Courts have, for over a century now, considered a MAN assaulting a WOMAN to be a crime of “moral turpitude.” See Curtis v. State, 81 S.W. 29 (Tex.Crim. 1904); Stewart v. State, 272 S.W. 202 (Tex.Crim. 1925); Lloyd v. State, 204 S.W.2d 633 (Tex.Crim. 1947); Dempsey v. State, 159 Tex.Crim. 602 (1954); Crawford v. State, 412 S.W.2d 57 (Tex.Crim.App. 1967); and Hardeman v. State, 868 S.W.2d 404 (Tex.App.—Austin 1993). “Moral turpitude” (as the phrase would imply) has been defined to include such acts which are “base, vile, or depraved.” See Polk v. State, 865 S.W.2d 627 (Tex.App.—Fort Worth 1993). Such crimes have historically been treated to be malum in se (wrong in itself), as such crimes involve “shameful wickedness—so extreme a departure from ordinary standards of honesty, good morals, justice or ethics as to be shocking to the moral sense of community.” Black’s Law Dictionary, 1101 (9th Ed. 2009). Generally, crimes of moral turpitude involve deceit, dishonesty, misrepresentation, deliberate (intentional) violence, or issues of personal morality. Id. Theft, prostitution, fraud by check, failing to identify oneself by providing a fictitious name to a police officer, and assault/aggravated assault by a man against a woman have all been held to be crimes of moral turpitude. See Bowden v. State, 628 S.W.2d 782 (Tex.Crim.App. 1982)(theft); Holgin v. State, 480 S.W.2d 405 (Tex.Crim.App. 1972)(prostitution); Martini v. State, 371 S.W.2d 387 (Tex.Crim.App. 1963)(fraud by check); Lester v. State, 366 S.W.3d 214 (Tex.App.—Waco 2011)(pet. ref’d.)(failure to identify by providing a fictitious name); Lloyd v. State, 204 S.W.2d 633 (Tex.Crim.App. 1947)(assault and aggravated assault by a man against a woman/his wife). No one would disagree that a MAN assaulting a WOMAN (let alone his wife) demonstrates a serious deficiency in moral character and is “base, vile, and depraved.”
But, what if the shoe is on the other foot: is a WOMAN assaulting a MAN, or a WOMAN assaulting one of her own family members, a crime of moral turpitude? In Texas, the answer, curiously enough, is not certain.
The closest the court has come to addressing the issue was…to punt on addressing the issue. When Medley appealed, claiming that the trial court denied his right to Equal Protection (see below) by ruling that domestic assault committed by a WOMAN against a MAN is not a crime of moral turpitude, the Court of Appeals devoted only the following paragraph to the issue (and in an unpublished opinion, no less):
“In his second point of error, appellant argues that it is a violation of his equal protection rights for an assault committed by a MAN against a WOMAN to be a crime of moral turpitude, while the opposite is not. A review of the record, however, reveals that the trial court refused to consider [Ms. Koch’s] alleged domestic assault because appellant did not provide the trial court with sufficient proof of conviction. Therefore, we need not consider whether appellant’s equal protection rights were violated or whether domestic assault committed by a female upon a male is a crime of moral turpitude.” See Medley v. State, 2008 WL 920342 *4 (Tex.App.—Houston [1st Dist.]).
Basically, the Court of Appeals declined to address the issue by stating that the appellant had not provided sufficient proof that the woman had actually been convicted of domestic assault. This is a clever way to side-step the issue, but adds nothing of substance towards determining whether or not a woman assaulting a man, or a member of her family, is a crime of moral turpitude. But, we shouldn’t lose sight of the argument—it’s a great one: Equal Protection demands equal treatment under the law, such that no group or class of persons is treated disparately (differently); holding that a MAN assaulting a WOMAN is a crime of moral turpitude, while holding that a WOMAN assaulting a MAN or one of her own family members is not, denies men Equal Protection under the law.
The difference in treatment here is based exclusively on the gender of the victim of the assault—not on the facts; not on the severity of the assault; not on the relationship (i.e. family member or unrelated party); or on anything else. If the assaulted party is a woman, and the assailant is a man, the assault is a crime of moral turpitude. If the assaulted party is a man (or perhaps even a minor male) the assault is not, somehow, “vile, base, or depraved.” How does this make sense when Family Violence Prevention s5.01 Legislative Statement suggests “…Family violence is a serious danger and threat to society and its members…Victims of family violence are entitled to a maximum protection from harm or abuse or from the threat of harm or abuse as permitted by law”?
The short answer is, it doesn’t. We collectively view abusive or assaultive behavior towards a family member—a person we (often enough) know, and share a biological connection with—as reprehensible. Arguably, we deem such conduct as more vile and depraved than assaultive or abusive action towards a non-relative, with whom we have no history or connection. Additionally, “family” is essential to the concept of order. The grouping of people into familial units not only orders us socially (at a basic level), it also “orders” conceptions of ideology. To disrupt or subvert this order by acting abusively or violently towards family members is, without question, “shamefully wicked—so extreme a departure from ordinary standards of honesty, good morals, justice or ethics as to be shocking to the moral sense of community.”
And yet…Texas Courts have been silent as to declaring the abusive and violent treatment of a man or male family member as a crime of moral turpitude. In so doing, Texas has denied men, and male family members, Equal Protection under law.