Why Women’s Wrongful Convictions Are So Difficult to Overcome

Outdated stereotypes and crimes that never occurred create unique challenges for women seeking exoneration

From The Appeal:

When Cynthia Sommer’s husband, Todd, died in 2002, the medical examiner said a cardiac arrhythmia was responsible. But prosecutors charged Sommer with murder on the theory she had poisoned her husband, pointing at her trial to the fact that Sommer underwent a breast augmentation, once participated in a wet T-shirt contest, and pursued sexual partners after her husband’s death. The implication was Sommer was not a grieving widow but reveling in her newfound sexual freedom. She was convicted but subsequently won a new trial, after which the charges were dismissed.

Sommer is just one of many innocent people who have been wrongfully convicted of a crime. Experts believe only a small percentage will ever be exonerated. But women like Sommer are rarely the face of this issue. Because of this, the specific contours of women’s wrongful convictions can go unnoticed, obscuring the fact that, while exonerations are already difficult to achieve, exonerating women presents its unique challenges.

According to the National Registry of Exonerations, only 285 women have managed to be exonerated since 1989, compared with more than 3,000 men. But experts say that isn’t indicative of the true number of wrongful convictions.

There is “no question” it’s harder for women to achieve exonerations compared with men, according to Marissa Boyers Bluestine, assistant director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School and the former executive director of the Pennsylvania Innocence Project. Regarding how many wrongfully convicted women have yet to achieve exonerations, “It’s not even a tip of an iceberg, it’s a tip of a tip of an iceberg,” Bluestone said.

Challenges in these cases are inextricably linked to society’s expectations of women—caregiving, sexual modesty, nonviolent behavior, and more. Prosecutors often accuse wrongfully convicted women of committing crimes against loved ones, leading them to suffer doubly—first at a tragedy within their own lives and second at being wrongfully convicted of causing it.

Here are some of those key characteristics that make women’s wrongful convictions unique—and so difficult to overcome:

There was no crime

The most significant difference between wrongful convictions of men and women is the nature of the crimes for which they are convicted. In most cases of exonerated men, a crime occurred, but prosecutors charged the wrong person. But in most cases of wrongfully convicted women—nearly three-quarters of them—no crime occurred. Only 37 percent of exonerated men were convicted of crimes that did not happen.

“It seems that women may be more vulnerable to no-crime wrongful convictions because of gender biases,” said Jessica S. Henry, a professor at Montclair State University and author of the book “Smoke But No Fire: Convicting the Innocent of Crimes that Never Happened.” “The first inflection point often comes in the designation of an event as a crime.” 

Once that happens, “we see those gender stereotypes kicking in,” Henry said.

“No-crime cases are, I think in part, a reflection of certain anxieties that we have about women’s roles in society,” said Deborah Tuerkheimer, a professor at Northwestern University School of Law specializing in gender and the criminal legal system. Tuerkheimer points to just-world theory, the cognitive bias humans have that assumes an order to the world and that bad actors will face consequences. But sometimes, tragedies—like a baby dying while in a woman’s care—simply are tragedies. And this can trigger dissonance.

“We’re going to kind of cohere a way of understanding the world that allows us to rest easier and to go about our business just knowing that if we act right, good things will come to us,” said Tuerkheimer.

Perhaps that’s why, as investigators look for reasons that don’t exist, a common contributor to women’s wrongful convictions is junk science, often in the form of incorrect medical diagnoses. The incredibly controversial diagnosis of Shaken Baby Syndrome (“SBS”), a finding that indicates an infant was violently shaken to death, has been used against numerous now-exonerated women. But many are still incarcerated, like Tasha Shelby, who was convicted in 2000 of killing her fiancé’s son by shaking him to death, despite a trove of records suggesting the child died of a seizure, and the recantation of the medical examiner who initially ruled the death a homicide.

Thus, no evidence

Quite simply, without a crime, there may be no evidence to indicate an alternative hypothesis for police to investigate or a defendant’s lawyer to raise during a trial. It becomes, instead, a credibility fight.

In cases where the prosecution argues a mother killed her child, “How do you say, ‘No, I was really a great mother?’ It becomes a very difficult task to disprove the negative,” said Henry.

Once a woman has been wrongfully convicted of a crime that never occurred, she faces an extraordinary uphill battle: many of the paths to exoneration are closed off, such as tracking down an alternate perpetrator, testing DNA evidence, or finding new evidence. 

“You don’t have not only the [exculpatory] evidence, but also the rhetorical power of the unapprehended perpetrator,” said Tuerkheimer. “They don’t have that very powerful, persuasive argument, which is to say, let’s find the real person who did this.”

Additionally, some of the most popular reform measures related to DNA testing or eyewitness identification procedures would not impact most women’s wrongful convictions.

The worst crime of all: being a ‘bad mother’

In 1996, Kristine Bunch was convicted in Indiana of killing her three-year-old son by starting a fire. At her sentencing, where the 22-year-old was pregnant, the judge told her: “I understand that you have arranged to have yourself impregnated,” adding: “You thought it would work to your advantage somehow in this process. It will not.”

“They were so quick to be judgmental about her,” said Judy Royal, former co-director of the Women’s Project at the Center on Wrongful Convictions at Northwestern University Law School, because Bunch was “living in a trailer, she’s an unwed mother, [and] she liked to have a good time sometimes—who doesn’t?” 

“There’s extra motivation to punish the bad mother,” said Royal. Bunch was exonerated 17 years later in light of evidence indicating the fire was accidental.

The perceived importance of child-rearing plays a crucial role in why a little more than a quarter of women exonerees tracked by the National Registry of Exonerations are wrongfully convicted of harming children—and could also be why child welfare misconduct is significantly more common in exonerated women’s cases than men’s.

The impulse to blame a female caregiver for failing to be a perfect mother can blind practitioners and prosecutors to other potential causes of death, like medical issues or other sources of a house fire. The fact a child was in a woman’s care can be enough to transform her from a grieving mother or caregiver to a suspect.

“Women are the caretakers for children, and so, therefore, they’re the ones who are last with the child,” said Bluestine. When something goes wrong, they are the easiest to blame.

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