Sex-Shamed to Death: Brenda Andrew and Mary Ellen Samuels

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 “sex-shaming” without repercussion is one of the many ways in which gender bias has gone unchecked in the capital sentencing system.

Scholars have traced such techniques to cases dating from the 1600’s. 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’s “adulterous” behavior was a major component of the evidence against her—even where it bore no relation to the crime. Baker’s case summaries are rife with examples of prosecutors who presented testimony to the jury about the accused woman having “several young lovers,” or “leaving to be with her lover,” or of “having many affairs,” or having an “adulterous affair.” (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 “to jurors’ fears of a society out of control, one where women’s sexuality ran amok.” (Mary Welek Atwell, Wretched Sisters: Examining Gender and Capital: Punishment, Peter Lang Publishing, 2014, 2nd ed., p 19.)

Prosecutors around the world share the same playbook. In our study Judged for More Than Her Crime, 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.

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’s 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’s death. In a case in which the evidence of Ms. Samuels’ guilt was equivocal at best, the prosecution’s tactics encouraged the jury to substitute a moral judgment for a legal one.

All of these tactics are forms of “sex-shaming” women to death—a term we first noticed in connection with the death penalty in Mark Bookman’s article about the Andrew case, “Sex-shamed to death: How Oklahoma prosecutors used sex and infidelity to put a woman on death row.” Other commentators and scholars use the terms “slut-shamed,” or refer to the “evil woman” theory of prosecution. We believe Mr. Bookman’s term best captures the problem broadly. There are gender norms for all aspects of a woman’s life (how to be a good daughter, a good sister, etc.), and women have been executed for acting outside all of them all. So, while “slut-shaming” captures some sexual conduct, particularly promiscuity, “sex-shaming” encompasses a broader range of prosecutorial tactics that characterize women as morally blameworthy for their sexual expression.

In separate blog posts to follow, we provide more detail about how prosecutors secured capital convictions and death sentences in the cases of Brenda Andrew and Mary Ellen Samuels. Prosecutors continue to use these tactics because they work: the foreman of Mary Ellen’s jury commented to the press after sentencing her to death, “I thought she was trash.”

Use of the prosecutor’s playbook, the process of sex-shaming female defendants to death, deprives women of fair trials and due process, and makes it very difficult for juries to make rational decisions based on the evidence. The prejudice engendered by these tactics is amplified by the failure of defense counsel to object to the admission of evidence rooted in sexual stereotypes. Capital defenders need to become more sensitized to how gender-norming works in the criminal legal system, and more proficient at countering it. And judges must bar prosecutors from using these tactics in a court of law.