For hundreds of years, prosecutors seeking the death penalty against women have followed a uniform playbook. In their efforts to secure death sentences, prosecutors repeatedly smear the character of female defendants by attacking their sexuality, their mothering skills, and their deviation from established gender norms. In case after case, prosecutors characterize women as hypersexual, adulterous, and sexually deviant; they encourage jurors to base their life-or-death decisions on character judgments rooted in outmoded and blatantly discriminatory stereotypes. That judges have permitted prosecutors to engage in \u201csex-shaming\u201d without repercussion is one of the many ways in which gender bias has gone unchecked in the capital sentencing system.<\/p>\n
Scholars have traced such techniques to cases dating from the 1600\u2019s. In his historical overview of women sentenced to death in the United States, David Baker noted that in 42 cases of women sentenced to death for spousal murder from 1632-2014, the accused\u2019s \u201cadulterous\u201d behavior was a major component of the evidence against her\u2014even where it bore no relation to the crime. Baker\u2019s case summaries are rife with examples of prosecutors who presented testimony to the jury about the accused woman having \u201cseveral young lovers,\u201d or \u201cleaving to be with her lover,\u201d or of \u201chaving many affairs,\u201d or having an \u201cadulterous affair.\u201d (David W. Baker, Women and Capital Punishment in the US: An analytical History, McFarland & Company Publishers, 2016, pp 81, 94-99, 153.) Mary Atwell describes the presentation of such evidence as an appeal \u201cto jurors\u2019 fears of a society out of control, one where women\u2019s sexuality ran amok.\u201d (Mary Welek Atwell, Wretched Sisters: Examining Gender and Capital: Punishment, Peter Lang Publishing, 2014, 2nd ed., p 19.)<\/p>\n
Prosecutors around the world share the same playbook. In our study Judged for More Than Her<\/em><\/a> Crime<\/em><\/a>, we describe several of these cases ranging from Indonesia, Jordan, Malawi, and Pakistan. In Italy in 2009, American student Amanda Knox was found guilty of murder in a trial following a media onslaught where journalists described the type of underwear she shopped for on the day of the crime, characterizing her as a promiscuous American student abroad. She was convicted of murder, only to be exonerated years later.<\/p>\n These tactics should be recognized as prosecutorial misconduct that violates due process and equal protection of the law. Indeed, it is difficult to imagine a court upholding a death sentence in a trial where prosecutors point to a woman\u2019s choice of underwear as evidence of her guilt. But this is precisely what happened in the case of Brenda Andrew. And in the case of Mary Ellen Samuels, prosecutors introduced a nude photo of Ms. Samuels that bore no relation to her case, and read aloud portions of erotic letters she received from a sexual partner after her husband\u2019s death. In a case in which the evidence of Ms. Samuels\u2019 guilt was equivocal at best, the prosecution\u2019s tactics encouraged the jury to substitute a moral judgment for a legal one.<\/p>\n