When Brenda Andrew was on trial for murder in 2004 in Oklahoma, a prosecutor named Fern Smith turned to the jury and held up Andrew’s thong and lace bra.
“The grieving widow packs this to run off with her boyfriend,” Smith told the jury sarcastically. “The grieving widow packs this in her appropriate act of grief.”
Andrew’s lawyers would later say they were too stunned by the presentation of the underwear to even object. But by then, it likely wouldn’t have mattered; Smith had devoted a significant amount of time to outlining Andrew’s sex life, questioning former lovers of hers on the stand. Andrew was ostensibly on trial for the murder of her husband, Rob Andrew, but Smith wasn’t content to prove her guilt. The prosecutor also wanted to convince the jury that Andrew was, in Smith’s words, a “slut puppy.”
Attacking women on trial for criminal offenses with further accusations of immoral conduct is a common phenomenon, historically and currently, locally and globally. In 1994, a California woman named Mary Ellen Samuels was convicted of murdering her husband and the hit man she’d hired to kill him, after prosecutors introduced portions of erotic letters sent to Samuels over the years as well as a nude photograph of the defendant. More recently, Italian officials seemed eager to advance evidence that Amanda Knox’s behavior following her roommate’s notorious murder wasn’t what one would expect from a woman in her position: instead of weeping and wailing, Knox seemed unaffected, and went on to buy red underwear and kiss a boyfriend afterward. When women are accused of wrongdoing, their womanhood is often brought into question as well. Andrew and her lawyers have argued since 2007 that her case is an example of that exact phenomenon—and on January 21, the Supreme Court agreed, reversing a lower court’s ruling against Andrew, whose case will now return to the Tenth Circuit Court of Appeals for reconsideration.
Capital punishment as an institution in some ways goes easy on women: Perhaps because women are viewed as relatively weak and passive, male killers are sentenced to death at a higher rate than female killers. Since 1976, only 18 women have been executed in the United States, compared with 1,589 men. Today, 51 women are on death row, compared with more than 2,000 men.
But for those women who do face capital sentencing, a particular kind of disadvantage based on their sex can arise: Although men are rarely sentenced to death based on their deviation from masculine gender norms, many female defendants facing capital trials are derided by prosecutors for failures of femininity.
Andrew was convicted of luring her estranged husband into their garage under the false pretense of restarting her furnace’s pilot light in November 2001, then participating in his fatal shooting with her lover James Pavatt in hopes of claiming a life-insurance payout. Andrew steadfastly contends that she is innocent, but immediately after the killing, Pavatt and Andrew fled to Mexico with Andrew’s two children; they were apprehended upon their return to the United States, where both were charged with murder. Pavatt’s trial came six months ahead of Andrew’s, and, according to the capital-defense attorney and author Marc Bookman’s book, A Descending Spiral, it “previewed the trial against her. Indeed, the evidence against him was in many ways identical to that facing his co-defendant.” An Oklahoma jury sentenced Pavatt to death, and then it was Andrew’s turn.
The prosecution presented two of Andrew’s former lovers as witnesses early on. The first man, James Higgins, had had an affair with Andrew after meeting at the local Price Mart, where Higgins was an assistant manager. When Smith prompted Higgins to explain the circumstances of his affair with Andrew, Higgins replied that Andrew had initiated the relationship by “coming in dressed sexy”—wearing short skirts and low-cut tops; in his telling, Andrew would “come in, talk, and kind of rub up against me and touch, and I mean, just flirting …” As Higgins’s testimony progressed, Smith continued to ask questions that elicited evidence implying that Andrew was sexually aggressive and adulterous. Higgins stated, for instance, that when the two began sleeping together, Andrew almost always paid for their motel rooms, and invited him to have sex in her car (as opposed to his) several times. Their relationship had ended years before Andrew’s alleged crime. A former babysitter for Andrew’s kids further testified that Andrew went out for groceries on one occasion wearing “a leather outfit” with her hair “really, really big.”
Later, the prosecution called Rick Nunley, a more recent lover of Andrew’s, to the stand. “Does a good mother take their children and flee to Mexico, take them out of school and flee to Mexico, when their father is lying in a coffin in a funeral home?” Smith asked him. “Not usually,” Nunley conceded. “Does a good mother invite her boyfriends over to the house with the children in the home when they’re still married to their father?” Smith then asked, as though her point hadn’t yet been made. Along with her marital infidelity, Andrew’s performance as a mother was presented as evidence that she was a failure as a woman.
And if there was any doubt that Andrew’s sentencing was in some sense about her femininity, Smith made the point explicit in her closing statements: Andrew “sits over here today, and has for the last five weeks, all meek and quiet and pretty. She’s a pretty woman. And she’s been on her best behavior. But that’s not the real Brenda Andrew.”
Capital trials by nature produce starkly opposing narratives about their subject. The juries are instructed to weigh statutorily defined aggravating factors associated with the murder against mitigating factors related to the defendant’s qualities as a person or the circumstances of the crime. Aggravating factors can include, for instance, special cruelty or atrocity, motives related to pecuniary gain, and the number of victims; mitigating factors could include diagnoses of mental illness or intellectual disability, or evidence that the defendant’s role in the homicide was minimal relative to a more culpable party. It is in the prosecution’s interest to present the worst version of the defendant to a jury—a sort of perverse incentive that can lead to appeals to jurors’ deep-seated notions of what constitutes bad conduct in society, regardless of whether those notions are fair. Given these conditions, it would be shocking if capital punishment did not speak to elemental prejudices—and the Supreme Court was able to see in Andrew’s case a troubling example of that phenomenon. Andrew may still lose in the long run, but her victory at the Supreme Court is a win for all American women facing the death penalty.
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