Tuesday, October 20, 2020

Journal of a plagued year: Jane Austen, legality, and Amy Conan Barrett

 Jane Austen's relatives, notably including her brother Henry, carefully preserved an account of what their great grandmother, Elizabeth Weller Austen, suffered under the law.

Jane Austen knew the story of her great-grandmother, Elizabeth Austen Weller

After Weller's husband died, leaving her with seven dependent children ten years old and under, she applied to her wealthy father-in-law for payment of her late husband's debts. She was, on her own, able to raise more than 500 of the 700-plus pounds her husband owed, a small fortune in 1704, and received a verbal promise from her father-in-law that he would pay the rest.

Unfortunately, the father-in-law died suddenly. His will largely ignored Weller Austen and her six youngest children, to her distress. Her husband's brother-in-laws, the executors of the will, refused to honor the father's verbal agreement to pay her debts. It was not technically stated in the will that this was to be done, therefore, technically, the estate wasn't liable. 

This legal, but cruel act, forced Weller to sell her personal possessions and also to become a housekeeper for a man who ran a boarding school to secure a future for her children. The trauma of her fall in social status, her humiliation, and the hard-heartedness of the family in charge of her fate, clearly shook Elizabeth Weller Austen to the core. She was a strong woman who fought back and earned a decent future for her offspring, but the scar remained as an intergenerational reminder of injustice.

Most people don't know Weller Austen's story, but Austen fans are familiar with the early scene in Sense and Sensibility in which, through step by step parsing and rationalization, John and Fanny Dashwood twist John's dying father's wish that his second wife and her daughters be well cared for out of his estate to an occasional cheap gift. Because the father has made no legal provision in his will, the couple, having the power, can and do legally strip the women of what their father intended.

Austen treats this series of events, inscribed with the Austen family's  intergenerational trauma, with caustic, stinging humor.

Austen encoded the story of Elizabeth Austen Weller in her first published novel

Likewise, in 1848, feminists at Seneca Falls published Declaration of Sentiments opposing the husband's legal right of "chastisement" (beating) of his wife. For more than twenty years, courts rejected what they called sentimental legal challenges to legal wife beating, pushing back that by saying, yes, certain cases were heart-rending, but that should not get in the way of the legal importance of not interfering with the male right of chastisement as head of household, be this of wife, servants, or children. 

Amy Conan Barrett

This brings us to Supreme Court nominee Amy Conan Barrett, who opined in the case Martin v Milwaukee County that Milwaukee County was not liable for having to pay $6.7 million dollars awarded in damages to a female prisoner repeatedly raped by a prison guard. Instead, the three-judge panel ruled,  the perpetrator alone, a Mr. Thicklen, was responsible:

But even when viewing the evidence in the light most favorable to Martin and the verdict, we hold no reasonable jury could find the sexual assaults were in the scope of his employment …

Uncontested evidence at trial demonstrated County thoroughly trained Thicklen not to have sexual contact with inmates. County expressly forbade him from having sexual contact with an inmate under any circumstances, regardless of apparent consent. County’s training warned him that such sexual contact violates state law and the Sheriff’s Office’s mission. (source: https://www.snopes.com/fact-check/barrett-jail-guard-ruling/)

In other words, even though Thicklen used the power of his official position and the weapons given to him by the county to threaten Martin with retaliation if she did not comply, if a county tells a guard "not to" assault prisoners and he does, the county is off the hook for damages.

The court also acknowledged that there was little chance that Thicklen would be able to pay the damages, stating "we have sympathy for Martin, who loses perhaps her best chance to collect the judgment."

How much sympathy do you think Barrett actually has for Martin? As in the case of the Elizabeth Weller Austen and the Dashwood sisters, a narrow concept of legality won the day against human decency. Such interpretations encourage the powerful to encroach on the weak by using legality as a stick with which to beat common notions of moral justice.

Barrett's narrow, hard-hearted view of legality appears to strive to ignore the human consequences of legalism. What do you think Jane Austen, often pictured as a conservative, upstanding Christian moralist, would have thought of Amy Conan Barrett's decision in  Miller --or , more to the point--with her nomination to the Supreme Court?