The appellate attorney for the Menendez brothers tells Newsweek that gender bias influenced their sentencing, suggesting they already might have been released if they were sisters.

Mark Geragos, who is seeking a new sentencing for the duo after new evidence emerged, reflected on how society’s evolving understanding of abuse has influenced legal outcomes.

“It’s always been interesting to me how culture has evolved,” Geragos told Newsweek. “I believe if these had been two sisters, they would not have been in custody now and they would not have been convicted of murder.”

Lyle Menendez, 21, and Erik Menendez, 18, admitted to fatally shooting their parents but claimed they acted out of fear their father, who had sexually abused Erik for years, was about to kill them to keep the abuse a secret.

Prosecutors argued there was no proof of abuse, as evidence of molestation was excluded by the judge during their second trial in 1995. They alleged the brothers were motivated by greed, aiming to inherit their parents’ multimillion-dollar estate—a claim the defense denied.

He also told Newsweek he will find out this week whether the judge will proceed with resentencing or request a 90-day extension if there are sufficient grounds for it.

The court convicted both brothers of first-degree murder and sentenced them to life in prison without the possibility of parole, rejecting two counts of manslaughter. The judge’s decisions, including limiting the defense’s arguments about the alleged abuse the brothers suffered, played a significant role in the trials’ outcomes.

“The judge actually ruled that child abuse was not susceptible of intent, whereas spousal abuse would have been,” Geragos said. “It did not qualify for an instruction which is wild to me because who’s more vulnerable – a spouse or a child? You would think a child has as much rights to claim abuse.”

These instructions guide the jury on how to interpret the law and apply it to the facts of the case. If something “qualifies,” it means it is deemed relevant and appropriate for the judge to instruct the jury about it. If it does not qualify, it means the judge has determined it is not pertinent enough to warrant such guidance.

Geragos told Newsweek he will learn about the judge’s next steps this week following the presentation of new evidence, with the aim of securing a new sentencing.

Challenges of Addressing Family Issues in Court

Deborah Tuerkheimer, a former Manhattan prosecutor and author of Credible, told Newsweek discussing family issues in court presents unique challenges.

The law has traditionally focused on addressing violence between strangers, as criminal law was designed to resolve conflicts between individuals who are not closely connected. This focus can create complications when similar issues arise within a family.

“The law doesn’t respond well to problems of abuse within a family, whether that’s domestic violence or child abuse,” Tuerkheimer said. “Whether it’s battered women who are defending themselves or it’s children defending themselves – it can be difficult for the realities of abuse to map onto our legal doctrines, rules and defenses.”

Investigative journalist and author Robert Rand told Newsweek he has dedicated the majority of his career to reporting on the Menendez brothers, immersing himself in their case and attending both trials.

He revealed Leslie Abramson, the lead defense attorney for Erik Menendez, said in her closing argument at the first trial, ‘If my client’s name were Erika instead of Erik, would you have an easier time believing his story?’

Tuerkheimer said boys who are victims of sexual abuse and assault face additional challenges because such cases are less common and often less acknowledged, with these difficulties being even greater decades ago.

“When victims don’t behave or look like we expect them to behave or look, we tend to find them not credible and boys don’t really fit into the popular understanding of who’s a victim of abuse,” the author said.

“Not being believed, right from the start, might be one of the most detrimental things for a survivor,” Kaleba said. “Belief—or lack thereof—sets the stage for that survivor’s entire journey, whether they get legal justice or not.”

Tuerkheimer told Newsweek while victims are often expected to fight back and report abuse promptly to protect themselves, there are many misconceptions about abuse and how victims respond when they are harmed.

Jennifer Simmons Kaleba, Vice President of Communications of RAINN, told Newsweek there is no linear path to sexual violence survivorship.

“Repressed memories are real. Fear of the perpetrator is real,” Kaleba said. “Any number of conditions can make a child afraid or unable to disclose that they have been abused, even years after the fact. The question we, as a society should be asking ourselves is not ‘Why doesn’t a child not speak out?’ but ‘What can we as adults do to step in?'”

After Rand investigated numerous leads and interviewed almost everyone involved—family members, lawyers, law enforcement officers, and jurors—the male jurors decided to convict the brothers of murder rather than manslaughter. They believed a father would never do such harm to his sons.

“We expect to be able to identify abusers because they’re so deviant and monstrous that they couldn’t possibly be our neighbors, our coworkers, even our friends and family members,” Tuerkheimer said. “There’s a collective refusal to see how commonplace sexual abuse and child sexual abuse really is.”

Rand said after 30 years and with the new evidence he discovered, he believes people are now more willing to accept that abuse can happen to young boys as well.

What is RAINN?

RAINN (Rape, Abuse & Incest National Network) is the largest anti-sexual violence organization in the United States. It operates the National Sexual Assault Hotline and offers confidential support and resources to survivors of sexual violence.

“We work hard to make sure anyone who needs to know they can get help, 24/7 in English and Spanish from National Sexual Assault Hotline,” Kaleba said. “Our work also extends to promoting and creating legislation that protects survivors and opens avenues to justice, and working with community groups, organizations, and institutions to help them recognize and improve hope they support survivors in their communities.”

Since its founding in 1994, RAINN has helped over 3.5 million survivors and their loved ones. Each year, the National Sexual Assault Hotline supports more than 300,000 individuals through its phone and online services.

“There is one characteristic that all sexual violence survivors have, regardless of age, identity, or any other defining factor for a human being who has been sexually abused: It is not your fault and you are not alone,” Kaleba said.

What Are the Menendez Brothers Doing Now?

The Menendez brothers remain in prison while they continue their legal battles. Erik Menendez is serving a life sentence without the possibility of parole, and Lyle Menendez is also serving a life sentence.

In 2018, officials transferred Lyle from Mule Creek State Prison in Northern California to R.J. Donovan Correctional Facility in San Diego, where they had already placed his brother in a separate unit.

Later, they moved into the same housing unit. Lyle requested the transfer after learning about his brother’s classification status.

Both brothers are married and met their wives while behind bars. Erik has been married since 1999, while Lyle was married from 1996 to 2001 and then remarried in 2003.

A Netflix series about the Menendez brothers, Monsters: The Lyle and Erik Menendez Story, is set to debut on September 19 and is generating high anticipation.

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