When Brenda Andrew was on trial for homicide 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 along with her boyfriend,” Smith informed the jury sarcastically. “The grieving widow packs this in her acceptable act of grief.”
Andrew’s legal professionals would later say they had been too shocked by the presentation of the underwear to even object. However by then, it seemingly wouldn’t have mattered; Smith had devoted a big period of time to outlining Andrew’s intercourse life, questioning former lovers of hers on the stand. Andrew was ostensibly on trial for the homicide of her husband, Rob Andrew, however Smith wasn’t content material to show her guilt. The prosecutor additionally needed to persuade the jury that Andrew was, in Smith’s phrases, a “slut pet.”
Attacking ladies on trial for prison offenses with additional accusations of immoral conduct is a typical phenomenon, traditionally and at the moment, domestically and globally. In 1994, a California girl named Mary Ellen Samuels was convicted of murdering her husband and the hit man she’d employed to kill him, after prosecutors launched parts of erotic letters despatched to Samuels over time in addition to a nude {photograph} of the defendant. Extra not too long ago, Italian officers appeared desperate to advance proof that Amanda Knox’s conduct following her roommate’s infamous homicide wasn’t what one would count on from a lady in her place: as a substitute of weeping and wailing, Knox appeared unaffected, and went on to purchase crimson underwear and kiss a boyfriend afterward. When ladies are accused of wrongdoing, their womanhood is usually introduced into query as effectively. Andrew and her legal professionals have argued since 2007 that her case is an instance of that actual phenomenon—and on January 21, the Supreme Courtroom agreed, reversing a decrease courtroom’s ruling in opposition to Andrew, whose case will now return to the Tenth Circuit Courtroom of Appeals for reconsideration.
Capital punishment as an establishment in some methods goes simple on ladies: Maybe as a result of ladies are considered as comparatively weak and passive, male killers are sentenced to demise at a better charge than feminine killers. Since 1976, solely 18 ladies have been executed in the USA, in contrast with 1,589 males. At present, 51 ladies are on demise row, in contrast with greater than 2,000 males.
However for these ladies who do face capital sentencing, a selected form of drawback based mostly on their intercourse can come up: Though males are not often sentenced to demise based mostly on their deviation from masculine gender norms, many feminine defendants dealing with capital trials are derided by prosecutors for failures of femininity.
Andrew was convicted of luring her estranged husband into their storage underneath the false pretense of restarting her furnace’s pilot mild in November 2001, then collaborating in his deadly taking pictures along with her lover James Pavatt in hopes of claiming a life-insurance payout. Andrew steadfastly contends that she is harmless, however instantly after the killing, Pavatt and Andrew fled to Mexico with Andrew’s two youngsters; they had been apprehended upon their return to the USA, the place each had been charged with homicide. Pavatt’s trial got here six months forward of Andrew’s, and, in line with the capital-defense lawyer and writer Marc Bookman’s guide, A Descending Spiral, it “previewed the trial in opposition to her. Certainly, the proof in opposition to him was in some ways equivalent to that dealing with his co-defendant.” An Oklahoma jury sentenced Pavatt to demise, after which it was Andrew’s flip.
The prosecution offered two of Andrew’s former lovers as witnesses early on. The primary man, James Higgins, had had an affair with Andrew after assembly on the native Worth Mart, the place Higgins was an assistant supervisor. When Smith prompted Higgins to elucidate the circumstances of his affair with Andrew, Higgins replied that Andrew had initiated the connection by “coming in dressed attractive”—carrying quick skirts and low-cut tops; in his telling, Andrew would “are available, speak, and form of rub up in opposition to me and contact, and I imply, simply flirting …” As Higgins’s testimony progressed, Smith continued to ask questions that elicited proof implying that Andrew was sexually aggressive and adulterous. Higgins acknowledged, for example, that when the 2 started sleeping collectively, Andrew nearly at all times paid for his or her motel rooms, and invited him to have intercourse in her automobile (versus his) a number of instances. Their relationship had ended years earlier than Andrew’s alleged crime. A former babysitter for Andrew’s youngsters additional testified that Andrew went out for groceries on one event carrying “a leather-based outfit” along with her hair “actually, actually large.”
Later, the prosecution known as Rick Nunley, a newer lover of Andrew’s, to the stand. “Does a great mom take their youngsters and flee to Mexico, take them out of college and flee to Mexico, when their father is mendacity in a coffin in a funeral dwelling?” Smith requested him. “Not normally,” Nunley conceded. “Does a great mom invite her boyfriends over to the home with the kids within the dwelling once they’re nonetheless married to their father?” Smith then requested, as if her level hadn’t but been made. Alongside along with her marital infidelity, Andrew’s efficiency as a mom was offered as proof that she was a failure as a lady.
And if there was any doubt that Andrew’s sentencing was in some sense about her femininity, Smith made the purpose specific in her closing statements: Andrew “sits over right here in the present day, and has for the final 5 weeks, all meek and quiet and fairly. She’s a fairly girl. And she or he’s been on her greatest conduct. However that’s not the actual Brenda Andrew.”
Capital trials by nature produce starkly opposing narratives about their topic. The juries are instructed to weigh statutorily outlined aggravating elements related to the homicide in opposition to mitigating elements associated to the defendant’s qualities as an individual or the circumstances of the crime. Aggravating elements can embody, for example, particular cruelty or atrocity, motives associated to pecuniary acquire, and the variety of victims; mitigating elements may embody diagnoses of psychological sickness or mental incapacity, or proof that the defendant’s position within the murder was minimal relative to a extra culpable celebration. It’s within the prosecution’s curiosity to current the worst model of the defendant to a jury—a type of perverse incentive that may result in appeals to jurors’ deep-seated notions of what constitutes dangerous conduct in society, no matter whether or not these notions are honest. Given these circumstances, it will be stunning if capital punishment did not converse to elemental prejudices—and the Supreme Courtroom was in a position to see in Andrew’s case a troubling instance of that phenomenon. Andrew should still lose in the long term, however her victory on the Supreme Courtroom is a win for all American ladies dealing with the demise penalty.