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Or Defamed A Dead Artist?


Friday, Nov. 22, 2002

Before reading a recent New York Times editorial, I had never heard of the "19th-century Impressionist painter Walter Richard Sickert, a disciple of Whistler and friend of Degas, a frequenter of London's demimonde who painted prostitutes menaced by malevolent male figures." Sickert is the man who crime novelist Patricia Cornwell claims is the infamous Jack The Ripper.

Nor am I a Ripperologist, as students of this subject call themselves. But I do have strong feelings about defaming defenseless dead people; there is a hole in American law, when it comes to this issue, that invites irresponsible history.

Has Cornwell closed the case? Or defamed Sickert? It was with these thoughts in mind that I read Cornwell's new nonfiction work - Portrait of A Killer: Jack The Ripper Case Closed. It did not take long to find the answer.

Cornwell's Investigation: From Scotland Yard to DNA Testing

Cornwell's search was prompted by a chance visit to Scotland Yard in May 2001, she writes in her book. Her tour guide, Deputy Assistant Commissioner John Grieve, happened to be an expert in Jack the Ripper's crimes. When he offered a tour of the Ripper crime scenes, Cornwell couldn't resist.

Had anyone ever employed modern forensic science to try to solve the Ripper mystery? she asked. When told they hadn't, she saw an opportunity. Her Scotland Yard guide suggested she check out Walter Sickert, for he had painted murder pictures - one of them depicting a man sitting on the edge of a bed with the body of the nude prostitute he just murdered.

During an ABC News chat room session that followed the next day, Cornwell said: "One thing that was not stated on Primetime was that we have not finished testing for DNA. We're now in round two, and maybe we'll get lucky. But even if we don't, I stand firm in my belief that Walter Sickert brutally murdered these women and others."

Only a few days after her statements to ABC News, according to her book, she expressed serious doubts to her agent: "It doesn't matter if he's dead. Every now and then this small voice asks me, what if you're wrong? I would never forgive myself for saying such a thing about somebody, and then finding out I'm wrong." But she assured her agent she did not think she was wrong.

The reasons for her doubts are understandable. She thought science would close the case, but it didn't. In truth, her DNA testing did not solve the case. Thus, she has had to resort to building a circumstantial case on basically the same evidence everyone else has used for 113 years.

The Problems With Cornwell's Argument

Jack The Ripper was clearly a sexual psychopath. For Walter Sickert to be the Ripper he too must be a sexual psychopath. Yet his received biography is entirely otherwise.

Cornwell suggests that some of Sickert's childhood experiences could have provided the psychological backdrop for psychopathology, however. She discovered that as a child Sickert, had a fistula operation: "I must admit I was shocked when I asked John Lessore about his uncle's fistula and he told me - as if it were common knowledge - that the fistula was a ‘hole in [Sickert's] penis,'" she writes.

"I can't say exactly what Sickert's penile anomaly was," Cornwell adds. Yet she proceeds at great length, and considerable detail, to imagine primitive medical procedures (operations performed circa 1865 without anesthesia, though possibly with chloroform) that she believes turned the child Walter Sickert into a serial killing sexual psychopath.

"Typically, in operations on … the genitals," she explains, "the patient was virtually hog-tied, with arms straightened, legs arched, and wrist bound to ankles. Walter may have been restrained with cloth ligatures, and as an extra precaution, the nurse may have firmly held his legs in place" as the doctor cut him.

In graphic detail, Cornwell creates a completely speculative account of Walter Sickert's surgery, and then forgives the child for hating the nurse and his mother for this traumatic experience - an experience that she has no evidence ever occurred as she describes it.

Frankly, the really brutal operation has been on the reputation of Walter Sickert. For me, Cornwell has not closed the Ripper case. Rather, I wondered if she had opened a case against herself - a potential defamation, or defamation-related lawsuit by Sickert's relatives, perhaps?

Can The Sickert Family Take Legal Action?

During the ABC News interview, Diane Sawyer raised the question of defamation. Diane reported, "We also contacted Sickert's nephew (presumably John Lessore) who said Patricia Cornwell is attacking the reputation of a brilliant man with no hard evidence." Then she asked Cornwell: "Any chance his family will sue you?"

Cornwell answered, "Well, I don't know. But if you can, I'll take my chances. I'd like them to prove he didn't do it."

Proving innocence can be inherently difficult, but not in Sickert's case: He seems to have a strong alibi. Thus, if Michael Sturgis, Sickert's biographer is correct about Sickert's whereabouts, proving Cornwell wrong might not be as difficult as she suggests.

The Ripper murders started on August 6, 1888. Sturgis has recently written in the Sunday Times (London) that Sickert was not in London at the time of two Ripper murders:

In fact, for much of the late summer of 1888 he was staying with his mother and brother in France, 20 miles from Dieppe. The exact dates of his holiday cannot be fixed but he probably left London in the middle of August - one drawing is dated August 4 and after that there are no references to his being in town. On September 6, six days after the murder of the Ripper's first victim and two days before the murder of the second, Sickert's mother wrote to a friend about the happy time they were having. It seems Sickert may have stayed until early October as he painted a picture of a local butcher's shop flooded with late summer light; he titled it "The October Sun."

The Possibility of Criminal And Civil Defamation Actions

There is no indication that Sickert relative John Lessore, or his kin or children, if any, contemplate a lawsuit. Yet clearly and understandably Cornwell has struck a raw nerve - and thus a suit against her would be unsurprising.

Most common law countries do not recognize such suits. The reason is that plaintiffs can only bring a defamation action if their reputation has been damaged. Dead people can't be plaintiffs. And relatives of a defamed decedent cannot claim their reputations were damaged by defamation that targets the decedent, not them.

The U. S. Supreme Court, however, in 1998 recognized that Americans at any rate have an interest in protecting their reputations after death. In Swidler & Berlin v. U.S., Chief Justice Rehnquist stated in the majority holding (relating to attorney-client privilege) that it was unreasonable to assume that a person's interest in his reputation ended with his death.

Of course, Rehnquist's ruling is a long way from a cause of action for defamation for the dead. But it may suggest related actions could be tenable, as there is an interest there to vindicate.

What civil action might a relative of a defamed deceased bring? One difficult but not impossible route might be to rely on one of the many state criminal statutes that make it a misdemeanor to defame the dead. Most of the statutes are relics of the pre-federal constitutionalization of the defamation law, but they are still on the books, and can still be invoked

Though these are criminal statutes, there is a body of tort law that gives courts authority to prosecute an implied civil action when the criminal statute failed to provide a civil remedy. While the Restatement (Second) of Torts acknowledge such causes of actions, rest assured that courts are not looking for ways to create new civil actions. In short, while you won't be sanctioned for filing such a lawsuit, it will be very tough going, and it will only go forward if you present a compelling case and are assigned to an intelligent trial judge.

I believe there should be such causes of action - not to enrich relatives of decedents, but rather to keep history honest. Thus, I mention this route hoping others will use it. If I were Sickert's nephew, I would have been in court with such a cause of action after the ABC News broadcast of December 6, 2001, suggesting that Sickert was 100% certain to be found to be Jack the Ripper.

Another Route For Aggrieved Relatives Of Defamed Decedents

In digging about for anything new in this area, I found a note in the Fordham Intellectual Property, Media & Entertainment Law Journal by Raymond Iryami. He does a nice job of summarizing the law as of Spring 1999.

I was unaware of an English case he cites, involving the son of British Prime Minster Gladstone. As he explains, a writer named Peter Wright claimed that the former and deceased PM was not as morally upright as he publicly pretended, for in fact he privately was most interested in prostitutes.

Of course, few lawyers would advise a client to peruse this high-risk route of inviting a suit. But it has been used by others. After Carroll O'Connor's much-loved son committed suicide, O'Connor provoked a man who he alleged had supplied his son with drugs into a lawsuit by calling him a "partner in murder." O'Connor survived his intemperate remark, and used the trial to leave behind a fonder memory of his son.

We still don't know the identity of the man who mutilated London prostitutes and taunted police as Jack the Ripper. I do know that Patricia Cornwell has mutilated Walter Sickert's reputation - convicting him in the public mind without enough supporting evidence to do so. It is too soon to tell if she's also mutilated her own reputation, and rather than closed the Ripper case, opened a new one involving herself.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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