The Unique Causes of Women’s Wrongful Convictions: Bad moms, bad wives, and bad girls

The 21st century has been characterized by many things, such as the growth and presence of feminist movements. The recent judicial misconduct regarding the mistreatment of female sexual assault victims is an example of sexism within the criminal justice system that has ignited feminist responses. However, this focus has been centered on the victim, leaving the accused behind. There is a particular lack of focus on how gender plays a role in wrongful convictions. Most of the wrongful convictions inquiries have taken an androcentric approach to the causes, ignoring the variable of gender. There are in fact many gendered narratives and stereotypes about women, which are pervasive in society, that contribute and lead to the unique wrongful convictions of women. These narratives operate at all stages of the criminal justice process by affecting the actions and decisions of criminal justice agents, the decisions of the female accused and the opinions of the jury. Unfortunately, the nature of these narratives has made it more difficult for wrongfully convicted women to achieve exonerations. Three prominent narratives are the “bad mother”; the “bad wife”; and "bad girls" (aka how women’s sexuality is manipulated in order to achieve a conviction).

The Bad Mother

'Women are defined by their motherhood and their role of care-giver and child protector'. Despite three waves of feminism, this stereotype still exists in society today and helps to contribute to women’s wrongful convictions.

Women are most often wrongfully convicted for the deaths of their children because when a child in the care of a mother dies, the “bad mother” narrative is often triggered since she failed to protect her child, which causes the police and the prosecutors to zero in.

Society’s need to blame mothers when something happens to their child is so pervasive that often no crime happened at all and the child died from natural causes. In fact, the three female exonerees from Innocence Canada were all wrongfully held responsible for the deaths of their children that were the result of no crime at all. This narrative rears its head at all phases of the process of conviction, from the police station to the court room.

This tendency can be so strong as to result in ignoring other plausible suspects. In the USA case of Nicole Harris, she was actually at the laundromat at the time of her son’s death and returned to her house to see the child’s father with their son’s lifeless body in his arms. Even given this incriminating image, the father was not cast as a suspect and Harris was wrongfully convicted.

Society’s expectation for women to be excellent mothers and caregivers also causes a mother to internalize the child’s death as their fault. This can lead to false confessions as a result of police using the mother’s moral responsibility as leverage. The police also utilize this narrative to encourage mothers to confess even when their child was not the victim.

In the case of Michelle Byrom, whose son was actually the true perpetrator, the police enticed a false confession out of her by saying “Don’t let him be out there by himself on this… And I can tell you, you are trying to leave him out there by himself”. Byrom spent time on death row before her conviction was reversed.

This internalized narrative can result in women taking false guilty pleas in order to regain and maintain their motherhood role.

The Canadian exoneree Maria Shepphard said she pled guilty to avoid being away from her children in an institution and that she was afraid CFS would take away her remaining kids if she did not plead guilty and “accept responsibility”.

When it comes to the court room, women are not only on trial for the offence they are charged with, they are also on trial for failing to live up to society’s standards of motherhood. And if the prosecutor can prove one, the other is more likely to follow. In the case of Nicole Harris, the prosecutor said to the jury, “She doesn't stand up for her family… She's not the mother the defense wants to present to you”. The prosecutor used the fact she had left her children unattended momentarily, even though the dad was home, and that she engages in legally acceptable corporal punishment in order to paint the image of a “bad mother”. This compelling image resulted in a conviction and she spent eight years in prison before her exoneration.

The Bad Wife

Another common trope in Western society is the conceptions that is a woman's role to fulfill the responsibility of a dutiful wife and caregiver for the whole family.

So, when a woman’s partner dies, she is held responsible - she has failed to be her husband’s keeper. Enter the “wife gone wrong” scenario.

This narrative appears to rear its head in two ways. The first is when criminal justice agents paint the woman as a manipulative housewife or lover that is motivated by greed, jealousy, lust or narcissism in order to achieve a conviction.

Whether you are the disgruntled divorcee who wanted revenge, as in the wrongful conviction case of Virginia Lefever, or painted as the greedy partner, who wanted to collect a life insurance policy, as in the case of Mychele Linehan. The evidence in the latter case was testimony that she had watched a movie with a similar plotline and said she wanted to be like the female antagonist.

The bad wife narrative is also used to wrongfully convict women who kill their partner to protect themselves when they likely could have used self-defence to obtain an acquittal, which often occurs in cases of battered women syndrome. Often this will result in false guilty pleas because women are socialized into not being violent and will feel the need to take responsibility for their actions. In the famous case of R v Gladue, Jamie Gladue pleaded guilty to a charge of manslaughter for the death of her abusive male partner, when self-defence could have achieved her an acquittal if she had gone to trial.

When they do go to trial, women fight against the belief that they have violated their role as a good wife and so must have overreacted or be suffering from some kind of illness, instead of their behaviour being accepted as rightful and justified just because it involves putting men in their place.

Bad Girls and Women’s Sexuality

The manipulation of women’s sexuality also leads to their unique wrongful convictions.

Criminal justice agents manipulate women’s sexuality in order to achieve a conviction because in a western society, the “promiscuity” of women is considered deviant- just look at Miley Cyrus.

Patty Prewitt’s past sexual transgressions with men 5 years prior to her husband’s death was used to villianize her. The prosecution argued in his closing argument that the jury should convict because “The dignity of the institution of marriage and the State and our communities require it”. Also, a woman’s display of sexuality after the death of a loved one is interpreted as inappropriate guilt feelings to be expected from a woman and therefore must be an indication of guilt.

There is also the infamous case of Casey Anthony where prosecutors used her partying after her daughter had gone missing, the fact that she was living with a man and entered a hot body contest in a fashionable dress, to villianize her. Now clearly Casey was acquitted, but she was really one of the lucky ones where the jury was able to see through these tactics of the criminal justice agents.

Barriers to Exoneration

These unique causes are given relatively little, if any, attention in academia or in the various wrongful conviction inquiries for a couple of reasons.

First, these narratives hide behind the more prominent causes like tunnel vision and faulty science. This results in the double burden of womens’ wrongful convictions-having to fight against two contributing factors of wrongful convictions. The lucky women who are exonerated are exonerated because they had one of these flashy factors standing in front- like the faulty scientific evidence of Charles Smith.

Also, many of womens’ wrongful convictions are not classified as being wrongful. Exonerations do not encompass acquittals and so a broader understanding of wrongful justice should be developed. Women being convicted of “no crimes” does not fit nicely within the exoneree framework; society because assumes there is a rightful conviction somewhere, and justice is not troubled if that possibility exists. For self-defence cases, the women did commit the act of killing so it is an issue of legal innocence and not factual innocence. Wrongful conviction infrastructure does not consider injustices in charging within its ambit.

The tropes I have discussed help explain the relatively few recognized female wrongful convictions. In an extra layer of injustice, these tropes contribute to difficulties in overturning these convictions and likely deter women from applying to have their cases reviewed and may contribute to innocence projects refusal to take on some women’s cases. And when they do take them on, the exonerations are more difficult to achieve.

Solutions

The first step is to draw more attention to these causes to “complicate the simple stories” presented through the current reasons for exonerations and turn to the root causes. For preventative awareness measures, this can be done through offering more effective training programs for criminal justice agents.

Perhaps sexually-charged evidence needs to be excluded because it clearly has a high prejudicial impact on the female. However, this then comes back to judges needing to be aware of these issues in order to determine that the evidence should be excluded. Increasing awareness is still key.

A more expansive definition of wrongful conviction should also be required to encompass the importance of fighting for legal innocence and would recognize “no crime” cases as well. This would hopefully encourage Innocence projects to take on their cases. There might yet be a role for these projects during trial.

There has been some movement towards creating more awareness- that being the Bluhm Legal Clinic Centre on Wrongful Convictions Women’s Project, which is the first wrongful conviction project to focus solely on women’s wrongful convictions. This project is so far the only one of its kind and is centred in Chicago, but hopefully these initiatives will be the first of many.

Sources:

Stephen Jones, “Under pressure: Women who plead guilty to crimes they have not committed” (2011) 11 Criminol & CJ 77.

Elizabeth Webster, “Gendering and Racing Wrongful Conviction: Intersectionality, Normal Crimes and Women’s Experience of Miscarriage of Justice” (2014-2015) 78:3 Alb L Rev 973.

Meghan J Ryan, “Cultivating Judgement on the Tools of Wrongful Conviction” (2015) 68:4 SMU L Rev 1073.

Luis M Rivera, “Criminal Justice System Involvement and Gender Stereotypes: Consequences and Implications for Women’s Implicit and Explicit Criminal Identities” (2014-2015) 78:3 Alb L Rev 1109.

Brian Reichart, “Tunnel Vision: Causes, Effects, and Mitigation Strategies” (2016-2017) 45 Hofstra L Rev 451.

Debra Parkes & Emma Cunliffe, “Women and wrongful convictions: concepts and challenges” (2015) 11:3 Int J Law Context 219.

Sandra Svoboda, “When innocence is pink: Wrongly convicted women fight for recognition, support, remedies”, Detroit Metro Times (12 January 2011), online: <www.metrotimes.com/detriot>.

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Innocence Staff, “New Study Shows Wrongfully Convicted Women Face ‘Gendered’ Challenges on Road to Exoneration”, Innocence Project (6 August 2016), online: <www.innocenceproject.org>.

Lucy Jane Lang, “To Love the Babe that Milks Me: Infanticide and Reconceiving the Mother” (2005) 14:2 Colum J Gender & L 114.

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Wendy Gillis, “Woman implicated by Charles Smith’s flawed evidence hopes for ‘closure and peace’”, Toronto Star (28 February 2016), online: <www.thestar.com>.

Elizabeth Rapaport, “Mad Women and Desperate Girls: Infanticide and Child Murder in Law and Myth” (2006) 33:2 Fordham Urb LJ 527.

Maurice Possley, “Mechele Linehan” (1 October 2013), The National Registry of Exonerations (blog), online: <www.law.umich.edu>.

Elizabeth Sheehy, “Battered Women and Mandatory Minimum Sentences” (2001) 39 Osgoode Hall LJ 529 at 529-30.

Colin Caffrey, “She Acts Guilty: Sexually Charged Consciousness of Guilt Evidence Should be Excluded Because It Is Biased against Women” (2013-2013) 15:4 St Mary’s L Rev on Race & Soc Jus 689.

Deborah Tuerkheimer, “The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts” (2009-2010) 87:1 Wash UL Rev 1 at 23.

Bluhm Legal Clinic: Center on Wrongful Convictions, Media Release, “Women’s Project: About the Project”, online: <www.law.northwestern.edu>.