Did sex shaming lead to the death penalty?

In April, the New York Court of Appeals overturned movie producer Harvey Weinstein’s 2020 conviction for sexual assault and rape. The court ruled in a 4–3 decision that the trial judge made critical errors in allowing salacious and irrelevant testimony, thus unfairly prejudicing the trial.

Allowing salacious testimony is not unprecedented. But unfortunately for Brenda Andrew, Oklahoma courts found this evidence harmless enough to find her guilty of murder in the first degree of her husband, Rob Andrew, and sentence her to the death penalty. Andrew, who is now 60 years old and the only woman on Oklahoma’s death row, was convicted in 2004 and has been appealing her conviction and sentence ever since. She is now petitioning the Supreme Court on writ of certiorari, or a case review of lower court decisions, claiming that the evidence of her sexual history, her clothing, and her behavior as a wife and a mother unfairly prejudiced the jury in both the guilt and the sentencing phases of her trial.

The petition points to the repetitive and constant prosecutorial reference to Andrew’s behavior not conforming to female and maternal stereotypes—including the testimony of her infidelities and demonstration of Andrew’s red thong and a lacy bra.

Andrew is claiming a violation of her constitutional right to due process, arguing that prejudicial evidence made her trial unfair. She has exhausted all her other state and federal appeals. In her petition, she points out that both the Oklahoma Court of Criminal Appeals (OCCA) and the 10th Circuit found the sexualized evidence irrelevant to her case. The OCCA stated that they “struggl[ed] to find any relevance” for some of the evidence the prosecution brought forth about her character and sexual history. In fact, OCCA observed that the evidence had “no purpose other than to hammer home that Brenda Andrew is a bad wife, bad mother, and a bad woman” (Andrew v. State, 164 P.3d 176, 206 [Okla. Crim. App. 2007]). Furthermore, the 10th Circuit, while upholding the OCCA decision, noted their concern about sexualizing evidence admitted and used by the prosecution at trial. They called for the entire judgment to be voided and remanded for issuance of habeas relief, which protects people against unlawful imprisonment.

Women are rarely sentenced to death and even more rarely executed. As one possible reason, researchers Leanne Macken and Michael O’Connell, PhD, point to the leniency bias, whereby women have generally been found to receive more lenient sentences than do men in the criminal justice system (Cogent Psychology, Vol. 10, No. 1, 2023opens in new window). Penn State University psychologist Brenda Russell, PhD, has written that women are generally perceived as more credible and less blameworthy, which likely contributes to the more lenient sentencing. However, a 2018 investigation by the Cornell Center on the Death Penalty Worldwide observed that women like Brenda Andrew whose behavior does not conform to gendered stereotypes are more likely to receive the death penalty. The “evil woman” theory, discussed by attorney Andrea Shapiro, JD, suggests that women are most severely sanctioned when they step outside accepted norms of female behavior (Journal of Gender, Social Policy & the Law, Vol. 8, No. 2, 2000opens in new window).

More psychological research should explore how testimony about sexual behavior or nonconformance to gender stereotypes differentially prejudices people in the courtroom and how this affects decision-making in capital cases. In the pursuit of gender equality in the criminal justice system, psychological research must continue to advance our understanding of how stereotyped perceptions both benefit and harm women.