Sex on Trial

Abstract

On January 21, 2025, the U.S. Supreme Court recognized in Andrew v. White that the State’s introduction of sexualizing evidence in a woman’s capital trial may violate due process. In Brenda Andrew’s case, prosecutors presented evidence about her sexual relationships, clothing, and style of underwear as proof that she was guilty of capital murder. Our research, supported by a grant from the National Science Foundation, reveals for the first time that the prosecution’s tactics in Brenda Andrew’s case were far from unique. Based on a systematic review of the trial transcripts of every woman currently on death row in the United States, we demonstrate that capital prosecutors routinely weaponize women’s sexuality in ways that are legally questionable and culturally regressive in order to secure punitive outcomes. We document cases across multiple states in which prosecutors discuss women’s bodies, underwear, intimate relationships, and sexual experiences in their capital trials as proof of their immoral and criminal mindset. In so doing, the State encourages jurors to convict and condemn women based on their violation of gendered moral codes.

We present our findings against a historical backdrop of women’s criminal prosecutions in the United States and Europe. The prosecutorial tactics we document are modern-day echoes of sex-shaming tactics commonplace in the prosecution of women for witchcraft and other offenses dating back hundreds of years. Although such tactics have been documented by historians and social scientists in isolated case studies, this paper is the first to conclude that the sexualization of women capital defendants is an ongoing and pervasive problem that undermines the quality of justice women receive. We conclude with a call for systemic reform—including legislation—to limit the ways in which prosecutors can invoke irrelevant evidence of women’s sex lives in criminal proceedings.