The Scholar: St. Mary's Law Review on Race and Social Justice


Colin Caffrey


A lawyer may submit sexually charged evidence under a consciousness of guilt theory. Utilizing this type of evidence convicts women based on their character, not for their alleged crimes, in criminal cases across America. Consciousness of guilt evidence holds bias because it exploits common gender stereotypes in order to obtain criminal convictions. Sexually charged evidence does not directly show a defendant’s guilt, but simply allows the jury to infer guilt based on a defendant’s conduct. Violating gender norms or reacting to the occurrence of a tragedy differently than one might normally expect is not an admission of guilt. Sexually charged consciousness of guilt evidence contains significant bias and discriminates against women because it merely shows a female defendant violated social norms, not that they are guilty. Two theories for excluding sexually charged consciousness of guilt evidence are: (1) the evidence is more prejudicial than probative, and (2) the evidence violates the female defendant’s constitutional rights. The probative value of one’s reaction to tragedy is very low because people react differently to tragedy. However, the potential prejudice against women regarding this type of evidence is very high because of the way society expects women to act in certain situations. Additionally, case law suggests the use of gender to obtain a conviction violates the defendant’s constitutional rights to due process of law, equal protection, and the Fifth Amendment right to a fair trial. Courts should exclude sexually charged consciousness of guilt evidence under a more-prejudicial-than-probative analysis and on a constitutional basis. A conviction should be based on facts, not deviation from social stereotypes.

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St. Mary's University School of Law



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