In 2004, during the trial for the murder of an Oklahoma man named Rob Andrew, the prosecutor dangled a pair of red thong underwear belonging to his wife, Brenda Andrew, in front of the jury. Ms. Andrew was accused of orchestrating the shooting that killed her husband. As a piece of evidence, the underwear was irrelevant to the case, but as an image it was potent. It said to the jury that this woman, with her provocative undergarments, will trespass the boundaries of marital vow and bed, so then every boundary, including taking a life, must be breachable to her.
The jury convicted Ms. Andrew and sentenced her to death. But in January 2025, the Supreme Court ruled that evidence such as the underwear and Ms. Andrew’s dating history could render a trial “fundamentally unfair” and sent the matter back to the 10th Circuit. Last month, the 10th Circuit declined to reconsider the case, holding that any gender-based evidence used to convict her did not affect her sentence or taint the jury.
Ms. Andrew is just one of dozens of women awaiting execution across the United States who were subjected to prosecutorial tactics so deeply mired in sexism that they should be manifestly unconstitutional. This term, the Supreme Court will have an opportunity to consider Ms. Andrew’s case again when her lawyers file an appeal — with the hope of obtaining a new trial and enforcing a standard long missing from criminal law: a standard that would prohibit sexism and gender bias in criminal trials.
The Supreme Court and lower courts have repeatedly affirmed that racial bias can undermine the fairness of a criminal trial. As recently as 2017, the Supreme Court ruled that relying on race “to impose a criminal sanction ‘poisons public confidence’ in the judicial process.” In that case, an expert witness deemed the defendant, Duane Buck, potentially dangerous in the future because he was Black. The justices determined that such blatant racism, relying as it did on the stereotype of the violent Black man, rendered his trial unfair. But there is a striking lack of firm precedent around gender discrimination.
In Ms. Andrew’s case, the prosecutor pushed the Oklahoma jury to see her through the lens of a former Sunday school teacher turned Jezebel, able to control her partners through seduction and manipulation — a not uncommon framing for women facing the death penalty. Throughout the trial, prosecutors questioned witnesses about Ms. Andrew’s skimpy outfits, her sexual partners going back decades and the frequency of her having sex in a car. None of these salacious details were connected with the alleged plot to murder Mr. Andrew, but they would collectively paint a portrait of a woman so morally compromised as to render her every word unreliable and ultimately help send her to death row.
The legal system is rife with misogyny and racism, both of which can work against defendants in courtrooms across this country. But with women at the center of so few cases involving capital punishment — they make up just 2 percent of the country’s death-row population — criminology research has tended to focus on larger demographic populations. Recently, in a paper titled “Sex on Trial,” the researchers Nathalie Greenfield and Sandra Babcock examined the trial transcripts of all 48 women who were sentenced to death between 1990 and 2022 to determine whether and how they were sexualized by prosecutors and defense lawyers. Ms. Greenfield is also representing Ms. Andrew in her appeal to the Supreme Court, and Ms. Babcock is representing her in a case before the Inter-American Commission on Human Rights.
They found a full 34 out of the 48 cases, or 71 percent, featured prosecutors using sexualizing language or arguments in their attempts to secure convictions. “In most of these cases prosecutors made no attempt to link the descriptions of women’s bodies and undergarments to the elements of the crime or aggravating factors relevant to punishment,” wrote Ms. Greenfield and Ms. Babcock. Over and over, women’s clothing, hair, body parts, extramarital affairs, relationships, sexual proclivities and accusations around bad mothering appeared in their trials, even when these details were irrelevant to the crimes.
Wendi Andriano, now on death row in Arizona for murdering her husband, used lube to have sex with her husband and was questioned about whether or not she also needed lube with her lover, the insinuation being that the lube itself was evidence of her wifely failings. Darlie Routier, sentenced to death after being accused of killing two of her sons in Texas, had the misfortune of leaving the house braless on several occasions after she had breast augmentation surgery, a detail the prosecutor asked at least two witnesses about on the stand. Unless needing lube or having breast implants directly implicates a defendant — and in neither of these cases was that true — such items should be barred from evidence since they serve no other purpose than to humiliate, objectify and dehumanize the woman on trial.
Nearly all the women in the report were subject to physical or sexual violence. During trial, that violence was often ignored, minimized or reframed as the women’s choice — another way in which sexism infiltrates a courtroom. Take the case of Brittany Holberg, a sex worker who claimed she’d killed a former client in self-defense after he pulled out clumps of her hair, refusing to let her go. The prosecutors said Ms. Holberg’s claim of self-defense was a fabrication. They argued that the fact that she pretended to enjoy sex for a living made her inherently deceitful. “Instead of viewing the woman who’s on trial as a victim-survivor,” Ms. Babcock told me, “they’re viewing her as somebody who has agency and who exercises her sexual power to seduce and manipulate.” These sordid details can have an accumulated effect of poisoning a jury’s mind against a defendant. This kind of poisoning is what denying due process looks like.
“A jury can only make proper decisions about somebody’s credibility,” Ms. Greenfield told me, “about their testimony, about who they are and what they might have done in their story and their defense if they’re devoid of those moral judgments and those stereotype-based judgments.”
The fact that more than 20 years later the news pieces written about Ms. Andrew or her case (including this one) still refer to her thong underwear reflects how powerfully the prosecutor’s narrative has taken hold. A not insignificant point in “Sex on Trial” is that 88 percent of the judges were men and 96 percent of the death-penalty cases were tried under an elected male district attorney.
In an effort to see if male defendants are subject to this same treatment, a team of researchers led by Ms. Babcock has begun research on men’s death-row cases in the same geographical areas and jurisdictions where the women were convicted. Of the 52 cases they’ve analyzed so far, they have yet to find a single one in which a man’s appearance is sexualized or his consensual sexual relationships are examined in detail. In their research, men were not asked about the number of sexual partners they’ve had or the type of undergarments they wear. The report has not yet been released, but so far evidence of sex acts typically appears in two ways, Ms. Babcock told me: either the defendant was charged with a sex crime or the defendant was a childhood victim of sexual abuse.
It seems that two different practices exist in our legal system: one that prejudices juries and judges by relying on gendered stereotypes and biases, and another that doesn’t. To condemn someone to death, evidence of guilt ought to be strong enough in its own right without prosecutors’ having to rely on shady tactics of sex discrimination. Women, Ms. Babcock told me, “are being condemned not just because of what they were convicted of doing, but because of their sex lives. Because of their appearance. Because they didn’t wear a bra.”
If the Supreme Court grants Ms. Andrew the opportunity to readjudicate her case, it will have taken an important step toward correcting this judicial blind spot and firmly establishing a much-needed new precedent for courts — and for women — across the country.
Rachel Louise Snyder is a professor of creative writing and journalism at American University. She is the author of “No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us” and “Women We Buried, Women We Burned.” This article originally appeared in The New York Times.