Exposing Not-So Secret Affair Isn’t Defamatory

(CN) - A nonfiction book by Michael Capuzzo did not defame a married woman by addressing her affair with her boss, a famous forensic artist, the 3rd Circuit ruled.

Penguin Group published "The Murder Room: The Heirs of Sherlock Holmes Gather to Solve the World's Most Perplexing Cold Cases," in August 2010. The book by Pulitzer Prize-nominated Capuzzo describes the work of a Philadelphia-based forensic group called the Vidocq Society and its founding member, Frank Bender, a forensic artist who uses decayed skulls to sculpt the faces of fugitives and crime victims.

Bender's assistant, a married woman with three children, complained in a 2011 lawsuit that she was recklessly cast as one of Bender's many "girlfriends."

Joan Crescenz described Bender's "reputation for his overt sexuality and self-professed sexual exploits," but maintained that her relationship with Bender "is, and always has been, professional." Bender died in July 2011, some months after Crescenz sued Capuzzo and Penguin for defamation and false light invasion of privacy.

"Crescenz has never had a sexual relationship with Bender," the complaint stated.

That story changed, however, as Crescenz's lawsuit advanced, and U.S. District Judge Noel Hillman awarded Penguin and Capuzzo summary judgment in December 2012. The judge found that there were several undisputed facts regarding Bender and Crescenz's relationship prior to publication of "The Murder Room."

Such facts included the fact that Bender's studio contained "at least one sculpture of the genitalia of one of his girlfriends," and that Esquire magazine published an article in 2004 that described Crescenz as Bender's "second wife."

A three-judge panel with the 3rd Circuit affirmed on March 26, noting that Crescenz had not even denied her sexual relationship with Bender when complaining to the publisher about a galley copy of the book she read.

"For example, in response to a passage that Bender and Crescenz 'made love like clockwork' every Tuesday, Crescenz stated, 'There's no every Tuesday like clockwork for anything,'" Judge Thomas Hardiman wrote for the Philadelphia-based court. "Similarly, Crescenz took issue with Capuzzo's description that she answered Bender's door bottomless, and that she became 'jealous of the other girlfriends.' To the latter statement, she clarified, 'I did NOT spend [the better half of my life] LUSTING after Frank Bender or his notarity [sic], and waste time with unnecessary jealousy for anyone.' Penguin published the book as scheduled despite Crescenz's concerns."

The ruling notes that it was Bender's late wife Jan who had described Crescenz as her husband's "second wife."

"Bender himself told Capuzzo that he regularly had sex with Crescenz, and Bender repeated through the course of this litigation - in deposition, via affidavit, and in Crescenz's presence - that they were sexual partners," Hardiman wrote. "Having learned of the relationship from the proverbial horse's mouth, it was reasonable for Capuzzo not to seek further verification from Crescenz. Indeed, Capuzzo had no reason to disbelieve Bender's account of his sexual relationship, especially in light of corroborating statements made by those who knew Bender best. Nor does the record show that Capuzzo was ever informed during his research and writing that Crescenz and Bender were not in a sexual relationship.

"Capuzzo's own observations also bolstered his conclusion," Hardiman added. "During the seven years he worked on The Murder Room, he witnessed Crescenz accompanying Bender to various social functions. Capuzzo was aware that the two shared hotel rooms with single beds on multiple occasions, which led to the reasonable inference that they had a sexual relationship. Indeed, in her deposition, Crescenz herself admitted it would be reasonable to conclude a man and woman were having a sexual relationship if they stayed together in a hotel room. Despite her awareness that 'other people were thinking [they] were having sex,' she continued to share a room with Bender. Crescenz neither provided evidence to contradict these sources of information nor raised any reason to question their veracity."

The 3rd Circuit also agreed with the lower court that Penguin reasonably followed industry custom by relying on Capuzzo's warranties.

"Penguin acted like any other conscientious publisher in releasing 'The Murder Room:' it did not have a duty to independently investigate the book's facts, relied on a reputable author, and had the book vetted by experienced outside counsel," Hardiman wrote. "Thus, Penguin is entitled to summary judgment on Crescenz's defamation claim as a matter of law."

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