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In capital cases, defiance of gender stereotypes helps justify execution

Defendants can be presented as hypersexual, bad mothers and bad wives, or hypermasculine.
Tamar Sarai Davis December 22nd, 2020
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This article is part of Prism’s series on women and the death penalty in the United States.

In 1905, the state of Vermont hanged Mary Rogers for the murder of her husband, Marcus. There was strong evidence of Mary’s role in the murder—working together, she and her then-lover Leon Perham killed Marcus, staged the death as a suicide, and then tried to collect on his life insurance policy. Despite her apparent guilt, the case sparked public debate over the propriety of condemning a woman to death. The day after her execution, the Times-Leader, a Pennsylvania-based newspaper, wrote, “Had there been one mitigating circumstance; had there been one spark of womanliness in Mary Rogers, had she shown slight possibilities of regeneration, [Gov.] C.J. Bell, of Vermont, might have interfered.”

Like many of the women sentenced to capital punishment in the U.S. both historically and more recently, Rogers became the subject of depictions in both court and the media that sought to highlight the ways she deviated from feminine norms. In cases like hers, those portrayals can function as an attempt to assuage the public’s discomfort with condemning women to death.  

The protections of womanhood? 

Though women currently make up the fastest growing incarcerated population, they comprise just under 2% of those on death row despite committing 10% of murders nationwide. While not everyone convicted of homicides will be sentenced to death—in fact, nationally, the death sentence rate is a little over 2%—men convicted of murder are far more likely to be executed than women. One reason scholars and legal professionals offer for this sentencing disparity is that many homicides committed by women are related to intimate partner violence, which jurors may consider “crimes of passion,” or one-time offenses that would not pose the kind of ongoing threat to public safety that the death penalty purportedly diminishes. Further, homicides committed by women are generally absent of certain “aggravating factors,” like burglary, rape, kidnapping, or a victim who’s a public official or law enforcement officer. Those aggravating factors are what qualify a homicide for capital punishment.

But beyond the specifics of the murders, scholars also posit that juries and judges may be more hesitant to execute women because of paternalistic ideas and notions of chivalry.  For prosecutors seeking the death penalty in cases with women defendants, the task often hasn’t been to dismantle the idea that women are in need of defense—but instead to argue that these defendants are not feminine at all, and that their actions both before and during the crime in question have forfeited them the protection of womanhood.

Dr. Mary Atwell, professor emeritus of criminal justice at Radford University and expert on the death penalty, says that in capital cases involving women defendants, prosecutors attempt to present these womens’ deviation from gender stereotypes as unofficial aggravating factors. In 2007, Atwell published Wretched Sisters, a book examining the stories of 11 women executed by the state between 1976 and 2007. In her research, she found this attempt to condemn women for their failure to adhere to specific notions of femininity to be a common feature in the cases she reviewed.

“In a death penalty case, the law allows certain kinds of aggravating factors to make a case eligible for execution and to persuade the jury that they should vote to execute somebody,” said Atwell in an interview with Prism. “In those cases, those factors do not include being a bad mother, or not taking care of your children or not keeping your house clean or being unfaithful to your husband or any of those kinds of things, which came up repeatedly in the cases that I looked at. It's really that issue that I think is the most troubling, and it's persistent.”

‘She keeps a filthy home’

While the pattern of presenting women defendants as unfeminine is pervasive, the ways these depictions are crafted vary depending on each case. Defendants can be presented as promiscuous and hypersexual, bad mothers and bad wives, or hypermasculine, particularly if they are in same-sex relationships. For women of color, particularly Black women who are already denied certain protections of womanhood, race can also complicate how their femininity is challenged during trial.

One of the most recent and infamous cases of condemnation via sexual history was that of Brenda Andrew, a 57-year-old woman currently on death row in Oklahoma. In 2004, Andrew was convicted alongside her boyfriend James Pavatt for the 2001 murder of her husband, Robert Andrew. Over the course of her trial, Brenda was depicted as promiscuous, an image carefully constructed by prosecutors using decades-old diary entries from her husband worrying that she was having extramarital affairs, and testimony from friends and past lovers who were asked about the clothes she would wear. Prosecutors even presented as evidence lingerie that Brenda had packed for a trip to Mexico shortly after her husband’s murder. This evidence was suggestively presented at trial towards the aim of depicting her as an unfaithful wife and a bad person.

Castigating women for their sexual appetites is as common among the prosecution as it is in broader society, but that’s not the only way women defendants can be presented as deviating from feminine standards. Prosecutors also capitalize on instances where women accused of murder appear to have strayed from their role as caretakers or nurturers. Of course, this can occur most clearly in cases where the victims of the homicide are children, as in the case of Christina Riggs, who was executed in 2000 for the murder of her two young children. However, this image can also be conjured up in situations where a woman’s motherhood is completely irrelevant to the details of the case. Lisa Montgomery, the 52-year-old woman currently on federal death row and is scheduled to be executed in January, exemplifies this phenomenon. Prosecutors have repeatedly argued that Montgomery was an unfit mother, says Sandra Babcock, faculty director of the Cornell Center on the Death Penalty Worldwide and an attorney currently representing Montgomery.

“At the sentencing phase of her trial, her defense team argued that she loved her children, which is true and the prosecutor came back and said, ‘She loves her children? Right, she keeps a filthy home, she doesn't cook, she doesn't clean, she doesn't go to her children's games,’” said Babcock. “You never would hear that argument in the case of a man. And the shocking thing is that this is at the penalty phase of a capital case. So they're making these arguments as part of a rationale for why this woman should be exterminated from the human race.”

In cases where a woman’s victim was male, she is often made out to be particularly threatening because of her ability to overpower a man. Atwell has also cited how prosecutors attempt to depict queer defendants or women in same-sex relationships as hypermasculine and thus, unfit for the social protections offered to women.

In the 1988 case of Wanda Jean Allen, a woman executed in 2001 for the murder of Gloria Leathers, her partner at the time, prosecutors attempted to not only dismiss evidence that the relationship between Allen and Leathers was a mutually abusive one, but they also described Allen as “the man” in the relationship. Similar tactics emerged in the case of Aileen Wournos, perhaps one of the most infamous women ever executed by the state.

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Interestingly, much of Wuornos’ case includes traits that are more typical of capital crimes: Wuornos committed a series of homicides and her victims were often strangers, but prosecutors in her case still worked to highlight Wuornos’ sexual orientation to the jury. In fact, prosecutors referred to Wuornos as a “lesbian whose hatred of men caused her to murder again and again.”

Condemnation by clickbait

 Like in the case of Mary Rogers, the media routinely amplifies these depictions of women defendants, extending their reach far beyond the courtroom. News coverage has not just reasserted how these women may have transgressed typical notions of femininity, but reporters and have also used monikers like “black widow,``” “damsel of death,” “blonde bandit,” and “trigger woman” to villainize these defendants in notably gendered ways. Atwell says this trend is especially prevalent in local news where the crimes hit closer to home and lead to more consistent and unfavorable coverage of capital cases.

This appetite for more salacious media portrayals of women defendants in capital cases—particularly due to their infrequency—can actually boomerang back into the courtroom and impact case outcomes.

In her review of cases involving executed women, Atwell found that three defendants—Judias Buenoano, Betty Lou Beets, and Aileen Wuornos—all had lawyers who were actively seeking book deals about the cases during the trial. Like many other defendants in capital cases, these women and their families could not afford quality, adequate legal representation. Attorneys for Buenoano, Beets, and Wuornos offered to represent them in exchange for signing away the rights to their stories. Not only did these attorneys provide inadequate defenses—Steven Glazer, who represented Wuornos, later admitted he knew nothing about capital law—but the desire to sell the most salacious story possible would likely work against the defense team's willingness to portray their own client favorably.

In a 1991 affidavit, Robert Miller, a friend and colleague of E. Ray Andrews, the original defense attorney for Betty Lou Beets, shared that Andrews often bragged about the money he would make from Beets’ story.

“He said how he was going to get rich on all this and the case was going to be the biggest thing that ever happened to him, and whatnot. He said the case was going to turn into a big movie and he had all the rights to it,” said Miller. “It was something he talked about pretty often and you could tell he was counting on those rights for a lot of money.”

Buenoano, Beets, and Wuornos were executed in 1998, 2000, and 2002, respectively.

In the same way that the crimes committed by women on death row must be considered in the context of broader systems of patriarchy, depictions of women defendants in the courtroom and in the media also have roots in sexist ideas and biases that can be both overt and implicit.

As reported by Prism, women defendants in capital cases already experience unpredictability when it comes to how their histories of abuse might be treated during the sentencing phase of their trials. Important evidence that reflects their past trauma is often not presented at all and when it is it can be ignored or downplayed by the prosecution. Similarly, gender stereotypes around how a woman ought to behave and how she deserves to be treated can show up in trials with varying outcomes. The perception of women as being weaker and needing protection from the horrors of execution in part works to keep women off death row but any deviation from those same stereotypes can lead women to be judged even more harshly and to be met with death in cases that otherwise would never have garnered such a sentence.

This story is part of Prism’s series on women and the death penalty in the United States. Click here to read part one on Lisa Montgomery and the common history of gendered abuse many women on death row share. Next week, we’ll explore the intersections of race and gender on death row, focusing on the experiences of women of color who’ve been sentenced to execution. 


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