The Complicated Relationship Between Justice and Gender

How stereotypes and societal tropes have shaped the trials of women wrongfully convicted of murder.

The Complicated Relationship Between Justice and Gender
Illustration by Mari Fouz.

In February 2002, a 23-year old Marine sergeant named Todd Sommer fell ill in San Diego. A few days later, he was dead. Todd had no known underlying health issues and a medical examiner determined at the time that a heart attack was the cause of death.

One year later, the military conducted tests on his preserved tissue and reached a different conclusion: There had been high levels of arsenic in the sergeant’s liver and kidneys at the time of his death. 

It was only a matter of time before Sommer’s wife Cynthia was arrested, and eventually convicted of first degree murder. Prosecutors argued she’d poisoned her husband to collect more than $250,000 in insurance benefits and $1,900 per month in survivor benefits which she used to pay for breast implants. She was facing the prospect of life in prison without parole.

According to The Appeal—a nonprofit news organization dedicated to exposing how the U.S. criminal legal system fails to keep people safe—and a report by the National Registry of Exonerations, prosecutors at Sommer’s trial, which took place in 2007, made note of her boob job, and said that she’d once taken part in a wet T-shirt contest. They also pointed out that she’d had sex with other men after her husband had died. Effectively, the trial became a character assassination.

After her conviction, Sommer, who always maintained her innocence, retained a new attorney and won a new trial. In a subsequent re-investigation of her late husband’s liver and kidney tissue, the samples tested negative for arsenic after all. And in the spring of 2008, the charges against her were dismissed and Sommer was released. 

“I’m overwhelmed with emotion,” she said in an interview the day she walked free. “I can’t describe being in jail one day, one minute actually, and being out the next.” Her attorney had a stronger message. Justice had been done, Allen Bloom said, not because of the prosecution, but in spite of it. 

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Stories about women who are convicted of murder and then exonerated are extremely rare, in large part because murders by women are less common than murders by men. But of the exoneration cases that are known, many share a common thread: The alleged criminal is often presented or shown by the media and the prosecution as displaying behavior or character traits that are not associated with a stereotypically good woman.

In Sommer’s case, for example, the prosecution focused on traits that positioned her as promiscuous and unfaithful. It homed in on behaviors that might support a theory—a stretch though it might be—that she was therefore capable of murder. 

Serious convictions are rarely overturned irrespective of gender, but there is evidence that the human tendency to draw conclusions about a woman’s character—based on biases and cultural stereotypes that inform how she should act—makes it particularly hard for a woman convict to be exonerated.

And while it’s impossible to know just how many women are locked up for crimes they never committed, a better understanding of this bias—as well as the dangerous effect of the public fascination with women who kill—is a critical first step to creating a fairer justice system.

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Going Against Society’s Expectations

A quick inventory of the few public cases of women convicted of murder or another serious crime and then exonerated, reveals something interesting: A consistent focus on details (possibly even just one single detail) that are at odds with the notion of a virtuous, well-behaved woman. 

The lawyer Connor Lang gives credence to this theory. Writing in 2021 for the Michigan Journal of Gender and Law, he concludes that women who were tried for murder, got a serious sentence and were later exonerated were widely portrayed at trial as having violated society’s expectations for women. 

One example: In 1995, Sabrina Butler-Smith became one of the first women in the U.S. to be exonerated from death row. Butler-Smith was convicted of abusing and murdering her baby. As she awaited a verdict in her initial trial, much emphasis was placed on the fact that she was a teenage mother. 

And then there’s Amanda Knox, who, ahead of being charged for the murder of her roommate Meredith Kercher in the Italian city of Perugia in 2012, was widely admonished for “doing the splits and a handstand” after being arrested. 

The global media as well as members of the public widely concluded her “bizarre” behavior to be evidence of her guilt. Many didn’t even so much as entertain the idea that a young woman in the grips of massive cognitive dissonance was acting in an irrational way because she was so unmoored by what was going on around her. Research recently published in the academic journal Psychology, Crime & Law shows that “displaying an unexpected emotional demeanor could trigger suspicion or perceptions of involvement” in a crime.

Jane Pucher, a senior staff attorney for the Innocence Project, in an interview earlier this year, echoed this idea.

“Many women who have been exonerated were convicted in large part because their behavior at the time of a tragic, shocking event in their life—the death of a child or a partner—did not align with how police or prosecutors thought a woman should act when confronting such a loss,” she said. “It is shocking to read case files and discover how these tropes distract law enforcement from fully investigating what actually happened, and how often juries are compelled to convict because a woman did not act within the narrow confines of socially-acceptable behavior.”

(This week Knox was reconvicted of slander—a conviction which had previously been quashed—for accusing a local bar owner of Kercher’s murder during Knox’s police interrogation.)

Lang, the lawyer writing in the Michigan Journal of Gender and Law, suggests that courts should be much more aware of how evidence admitted at trial can play into implicit biases and society’s expectations for women, as that can directly affect the outcome of trials and sentencings.

Lang’s and Pucher’s ideas also speak to the concept of confirmation bias—a human tendency to over-index on information that supports an existing belief, and to discredit information that challenges it. 

In other words, if someone thinks an individual is guilty of murder, they might latch on to any and all traits and behaviors that suggest that individual is capable of an atrocious crime—even if these apparent clues, like a wet T-shirt or doing a handstand, are unrelated. 

Another example of confirmation bias in action: In October 1990, Debra Milke was charged with murdering her 4-year-old son. Prosecutors argued that Milke had taken out a $5,000 life insurance policy on her child. But Milke worked in the insurance industry and it later emerged that the policy had been part of a regular employee benefit package. Nonetheless, the policy became a key piece of evidence that likely confirmed any preconceived beliefs about Milke’s guilt. Milke was exonerated in 2015 after more than two decades on death row. 

Of course, outright sexism and racism can also play a role, feeding directly into the phenomenon that psychologists refer to as the similar-to-me effect—that is, an affinity bias that makes us favor people who resemble us or who share another obvious characteristic with us. Butler-Smith, the woman exonerated in 1995, recalled in an interview in 2022 that when she looked at the jury that convicted her, nobody looked like her: “Everybody was white, so I basically knew my life was over.” 

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Too Tragic to Confront

One of the statistics that’s perhaps most shocking as it relates to exonerated women is that—according to the National Registry of Exonerations—almost two-thirds of female exonerees were convicted of a crime that never even happened. That’s about three times the rate for men.

The journalist Rachel Aviv referenced two examples of this in a recent New Yorker story: that of a Dutch nurse named Lucia de Berk and an Italian nurse named Daniela Poggiali. Both were initially convicted “largely because of a striking association between their shift patterns and the deaths on their wards.” In both cases, it later emerged, no crimes had actually been committed.

In that same New Yorker story (which opened the door to the idea that a British neonatal nurse, Lucy Letby, who was last year convicted of murdering seven babies, might be innocent), Aviv mentioned the case of Sally Clark.

In Clark’s case, Aviv noted that “flawed statistical reasoning” turned it into “one of the most notorious wrongful convictions in the U.K.” In 1999, Clark, a lawyer, was found guilty of murder after her two baby sons died suddenly and without clear explanation. “One of the prosecution’s main experts, a pediatrician, argued that the chances of two sudden infant deaths in one family were one in seventy-three million,” Aviv wrote. “But his calculations were misleading: He’d treated the two deaths as independent events, ignoring the possibility that the same genetic or environmental factors had affected both boys.” Again, no crimes were committed—both babies, it was later established, died of natural causes—but for a while at least, a tragic misfortune was ruled less likely than a brutal double killing. 

The sample sizes in question are too small to draw sweeping conclusions, but one interpretation is that these erroneous explanations are something of a cover for a real explanation that is simply too tragic to confront, namely, that a young child can die as a result of nothing more sinister than a devastating genetic condition or sudden illness. 

Butler-Smith’s baby boy, whom she was initially convicted of killing, was also later found to have suffered from an underlying medical condition that cost him his life.

Obsessed With An Idea of Women Who Kill

Helena Kennedy, a lawyer who represented the convicted U.K. murderer Myra Hindley during Hindley’s 1974 trial for plotting to escape from prison, wrote in a 2018 article for the Guardian that humans derive a sort of fascinated thrill from the image of the woman murderer. 

There might be part of the human psyche—almost too disturbing to acknowledge—that’s sort of riveted by the idea of a woman who kills. “Men enter the pantheon of monsters more often than women,” wrote Kennedy, “but convicted killers who do not belong to the dominant culture are more likely to be mythologized.” 

Pop culture certainly speaks to this. Stephen King’s novel “Carrie”—and its multiple movie adaptations—tells the tale of a mocked teenage girl who uses her telekinetic powers to become a barbaric killer. It’s widely lauded as one of the most iconic and best horror stories of all time. Similarly, The Ring, a 2002 movie adaptation of a 1998 Japanese film, features a young girl-turned-savage killer. 

In 2018, the first season of the British series, “Killing Eve,” a twisted black comedy about a psychopathic assassin named Villanelle, set a record for the BBC’s streaming service by notching up 10.8 million requests in just seven days. Each of these stories breaks a taboo, and that is captivating. And perhaps because violence is an inherently masculine trait, stories that patently defy that are beguiling. 

There is, of course, a real darkness to culture’s obsession with women who kill. But peeling back the layers, we find something else going on, too. In portrayals of women killers in movies and TV, the viewer is forced to confront the idea that all humans have the potential to be evil, regardless of gender. If we can wrap our heads around that, does it make the prospect of a real-life woman killer—the femme fatale or the angel of death—a little less compelling, perhaps? 

For now, the justice system will only ever be as perfect as the imperfect humans who serve as judges, lawyers and jurors. What we can and should do, though, is question it consistently and courageously—and not just when a major news story prompts us to do so. We owe it to those who will never have a chance to do that for themselves.

Josie Cox is a journalist, author, broadcaster and public speaker. Her book, WOMEN MONEY POWER: The Rise and Fall of Economic Equality, was released in March.

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