How Amy Coney Barrett Ruled in a Case About a Raped Pregnant Teen Is Worrying People

She joined an opinion that reversed a $6.7 million lawsuit because “no reasonable jury could find the sexual assaults were in the scope of his employment.”
October 19, 2020, 5:00pm
Supreme Court nominee Amy Coney Barrett testifies during the third day of her confirmation hearings before the Senate Judiciary Committee on Capitol Hill in Washington, Wednesday, Oct. 14, 2020.(Andrew Caballero-Reynolds/Pool via AP)

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Amy Coney Barrett, President Donald Trump’s pick for the Supreme Court, is facing renewed scrutiny over her role in a 2018 ruling that found Milwaukee County wasn’t liable after a jailed woman said a guard repeatedly sexually assaulted her.

In 2018, while Barrett was a judge on the U.S. Court of Appeals for the 7th Circuit, she joined an opinion that reversed a lawsuit that had awarded the woman $6.7 million, because, the opinion found, “no reasonable jury could find the sexual assaults were in the scope of his employment.”

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“In this 7th Circuit ruling, she and her male colleagues held that it was completely irrational to conclude that a prison guard could have used sexual assault as a method of achieving the power and discipline over an inmate that it was his job to exercise,” Fatima Goss Graves, president of the National Women’s Law Center, said in a statement Sunday. “Barrett’s record is a veritable handbook on how to use the courts to devalue the needs of women, as well as our very democracy.”

The woman at the center of the case was 19 years old and pregnant when she was booked into Milwaukee County jail in 2013, according to the ruling. At the time, the jail was run by the controversial Sheriff David Clarke, a high-profile Trump supporter.

The woman accused the guard, Xavier Thicklen, of sexually assaulting her five times. During one of the assaults, which occured when she was more than seven months pregnant, the woman went into preterm labor and started to bleed, she said. When she later went into full labor, the woman said she was shackled during the delivery.

The woman said that Thicklen sexually assaulted her again just four days after she gave birth.

"He used his keys, his power, his authority to get in these places and rape me," the woman testified during a 2017 hearing for the federal lawsuit, the Milwaukee Journal Sentinel reported.

Thicklen, who denied the woman’s accusations, was initially charged with sexual assault. He pleaded guilty to a lesser charge of misconduct in office. He was fired, sentenced to three days in jail, and fined $200, according to the Milwaukee Journal Sentinel.

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Barrett and her fellow judges on the 7th Circuit found that Milwaukee County wasn’t liable for the alleged assaults because, even if the judges conceded that they happened “during the authorized time and space limits of Thicklen’s employment,” they definitely weren’t a part of his job description.

“The undisputed facts and reasonable inferences point ineluctably to the conclusions that Thicklen’s abhorrent acts were in no way actuated by a purpose to serve [the] County,” the judges wrote. “He raped Martin for purely personal reasons, the rapes did not benefit [the] County but harmed it, he knew the rapes did not serve [the] County, and the rapes were outside the scope” of Thicklen’s employment and duties.

Barrett has described herself as a devotee of originalism and textualism, which, as she described it in her Senate Judiciary Committee confirmation hearing last week, means that she interprets laws using the meaning of the law at the time it was written. Although Barrett largely avoided answering questions about her views on issues like abortion and LGBTQ rights at that hearing, activists fear that Barrett—a devout Catholic who is personally opposed to abortion—would wield originalism to roll back women’s rights.

While Barrett joined an opinion in 2020 that found Wisconsin’s Polk County liable after a jail guard was convicted of sexually assaulting multiple women, Salon reported, she also wrote a 2019 opinion that let a Purdue University student accused of sexual assault pursue a lawsuit against the school over its handling of the investigation.

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“It is plausible that [school officials] chose to believe Jane because she is a woman and to disbelieve John because he is a man,” Barrett wrote.

Emily Martin, vice president for education and workplace justice at the National Women’s Law Center, told the Washington Post that she was troubled by the idea of replacing the late Justice Ruth Bader Ginsburg, a trailblazing feminist litigator, with “a judge who is eager to use the language of sex discrimination in order to defend the status quo, and to use the statutes that were created to forward gender equality as swords against that very purpose.”

Kyle Herrig, president of Accountable.US, a nonpartisan watchdog group, condemned Barrett’s ruling in the Milwaukee County case Friday.

“Amy Coney Barrett’s judgment demonstrates a level of unconscionable cruelty that has no place on the high court,” Herrig said. “The only thing more concerning than the rush to confirm by Senate Republicans is what we are learning about Amy Coney Barrett’s extremist record. It is hardly surprising that she has dodged question after question during her testimony.”

Senate Majority Leader Mitch McConnell, a Kentucky Republican, has promised to get a vote on Barrett’s nomination to the Senate floor by the November 3 election. On Thursday, the Senate Judiciary Committee agreed to vote on whether to advance her nomination to the full Senate on October 22.