Supreme Court Decision on Prosecutor Sexism Could Give Women New Trials

In January, the U.S. Supreme Court ordered a federal court to consider whether an Oklahoma woman named Brenda Andrew should get a new trial. In 2004, an Oklahoma jury convicted Andrew and sentenced her to die for the killing of her husband three years earlier. She is now the only woman on the state’s death row.

However, Andrew has long asserted that prosecutors tainted her case with irrelevant testimony regarding her sex life, mothering skills, and clothing. Earlier this year, the Supreme Court agreed. With this landmark 7–2 ruling, the nation’s highest court recognized that harmful gender stereotypes can poison women’s criminal trials.

During the 2004 trial, the state detailed Andrew’s intimate relationships (including one that took place twenty years before the case), the outfits she wore, and even her style of underwear. Andrew had a clean criminal record and stated she had nothing to do with her husband’s killing, so prosecutors sought to undermine her legal defense by sex-shaming her for conduct that had nothing to do with the murder.

I have frequently told my law students and fellow attorneys about Andrew’s story. The image of a male prosecutor dangling her underwear in front of the jury during closing arguments never fails to elicit gasps of horror. The state’s conduct recalls an earlier, regressive time in our nation’s history when women were cast out from society—or even executed—for rejecting the sexual straightjacket assigned to them at birth. But Andrew’s case is far from unique.

As the co-founder of the Center on Gender and Extreme Sentencing and faculty director of the Cornell Center on the Death Penalty Worldwide, I led a team of researchers that reviewed the cases of nearly fifty women on death rows around the country for evidence of gender bias. We found that juries were allowed to consider women’s sexual histories, failings as mothers, choices of intimate partners, and female “wickedness” when deciding how to punish them.

Prosecutors across the country often portray female defendants as hypersexual to attack their credibility and undermine their legal defense. In a 2004 Arizona case, prosecutors pointed out that the woman on trial had worn “skimpy” clothing and invited the jury to speculate whether she needed lubricant before having sex. In a 2003 Ohio case, the state asked witnesses to testify about a white defendant’s interracial relationships, telling the jury that  “the persuasion that she prefer[red]” was “a large [B]lack man.”

California has more women on death row than any other state, and prosecutors there have used similar tactics going back decades. In one 2006 case involving a young woman whose intimate partner had raped her, burned her with a cigarette, beat her, held a gun to her head, and strangled her, prosecutors argued that she “needed her sex” with him and that she actually held the power in their relationship. In a 1993 California case, prosecutors argued a woman facing the death penalty had “used her sex to destroy another human being.”

Other women are judged for their alleged failures as mothers. In one 1995 California case, prosecutors argued that in deciding whether a woman should be sentenced to death, the jury should consider the fact that her children had been raised by their grandmother.

“Nothing will turn this woman around, not even carrying her own child,” they said. “That’s the type of person to be punished.”

Gender stereotypes carry enormous power. When prosecutors weaponize expectations of female chastity and maternal care against women accused of crimes, they can lead to wrongful convictions or excessively punitive sentences. As Tenth Circuit Court of Appeals Judge Robert E. Bacharach wrote in one of Andrew’s previous appeals, portraying Andrew as “a modern Jezebel” made it nearly impossible for the jury to “seriously consider her version of events.”

The specter of the “Jezebel” is, of course, a stereotype primarily weaponized against Black women and other women of color to portray them as lascivious and promiscuous. The term dates back to slavery—white men and slave owners used the theory to justify sexually abusing female slaves. Today, women of color and queer people remain vulnerable to these insidious prosecution tactics. Since expectations of female passivity are racialized and sexualized, women of color and queer women are less likely to be recognized as survivors of violence or victims of harm in need of support.

The Supreme Court’s January decision gave us a new opportunity to confront gender stereotypes in the courtroom. And women on death row may not be the only ones who receive new trials as a result. In the weeks since the ruling, incarcerated women and their lawyers have shared stories with me about non-capital trials infected by misogyny. Just two months ago, the California Supreme Court overturned the conviction of Brittney Collins, who had been convicted of murder and sentenced to fifteen years to life for failing to stop her abusive partner from killing their child. In Collins’s case, investigators said that she should have known about the risk to her child because she was “built” with a maternal instinct—even though she was not in the room when her child was killed.

Our legal system has long tolerated gender bias in criminal courtrooms. Now, imprisoned women who endured similar prosecutorial tactics can demand that courts review their cases. The judges who conduct those reviews must recognize that courtroom gender bias is never harmless. It is high time that women are judged for their actions—rather than their failure to embody unattainable “feminine” ideals.

• The Appeal is a nonprofit newsroom that exposes how the U.S. criminal legal system fails to keep people safe and perpetuates harm.