Sean Penn goes by a number of honorifics: actor, journalist, philanthropist, activist, humanitarian. At scattered points throughout his career, however, reporters and biographers have branded him with a much less noble title: wife beater. Since the late Eighties, numerous media outlets have alleged, with varying degrees of specificity and confidence, that Penn is guilty of assaulting—in some versions, torturing—his ex-wife of four years, Madonna. But are these accounts actually true?

The questions surrounding these allegations, which center on a mysterious altercation between the ex-couple at their Malibu home in late 1988, are now receiving a wave of fresh attention thanks to a $10 million defamation lawsuit Penn filed against Lee Daniels, the creator of Empire, in late September. According to the suit, Daniels “falsely asserted and/or implied that Penn is guilty of ongoing, continuous violence against women.” In the same papers, Penn’s lawyers took pains to clarify that he “has never been arrested, much less convicted, for domestic violence.”

Considering the established facts of the case and legal precedent, it is unlikely that Penn will be able to prove in court that Daniels knowingly defamed him. (The allegedly defamatory speech consisted of Daniels’ oblique comparison, during an interview with The Hollywood Reporter, between Penn and the actor Terrence Howard, who has been repeatedly accused of beating up women.) But prevailing against Daniels does not appear to be the primary aim of Penn’s lawsuit. Instead, the actor seems to be treating the case as a publicity campaign to revise the predominant narrative about his behavior toward women in general and Madonna in particular.

This strategy has already produced immense dividends for Penn’s public image, most recently in the form of a sworn affidavit, signed by Madonna Louise Ciccone on October 7 and filed in court last week, in which the singer wrote, “Sean has never struck me, ‘tied me up,’ or physically assaulted me, and any report to the contrary is completely outrageous, malicious, reckless, and false.”

It’s not immediately clear how the Supreme Court of New York County will weigh Madonna’s declaration, given that she signed it after Daniels compared Penn to Howard. Nor is it clear how effective Penn’s strategy will be in the long run. After all, his attempt to prosecute Lee Daniels’ speech will require the court, and the public, to confront the most vexing mystery of the underlying lawsuit: If Sean Penn never struck Madonna, never bound her, never assaulted her—as she now claims—then why, for the past 27 years, have so many people come to believe he did?

It is a matter of record, of course, that Penn possesses violent tendencies. The actor’s history of assaulting men—a film extra, a paparazzo, a friend of Madonna’s—is rather well-documented. But it is also a matter of record, if you consider mainstream news outlets the “record,” that those violent tendencies extended to Madonna. Indeed, attorneys for Daniels recently submitted 18 separate exhibits (including copies of six articles, scans for three different Madonna biographies, and a reproduction of a Google search for “Sean Penn domestic violence”), which give the clear impression, separately or combined, that Penn has a history of domestic violence.

Some of the headlines from those exhibits are damning. Here’s one from The Daily Beast:

Another from BuzzFeed:

And The Daily Mail:

A closer scrutiny of these exhibits, however, raises a curious epistemological problem: Where exactly did these accounts of Penn’s violence come from? The Daily Beast piece, which was published earlier this year, is an instructive example. It noted two major allegations: 1) Penn “hi[t Madonna] across the head with a baseball bat” in June 1987, and 2) Penn bound Madonna with a lamp cord before he “smacked and roughed [Madonna] up” for nine hours in December 1989.

For the first allegation, The Daily Beast cited a February 2013 Washington Post article titled “No more free passes to famous men who abuse women,” whose author stated: “Once, Madonna was hospitalized after Penn struck her with a baseball bat. He was charged with domestic assault in 1988 and pleaded guilty to a misdemeanor.” To support this claim, the Post article linked to an un-bylined News.com.au listicle from 2009. That pieces describes Madonna as a “famous victi[m] of domestic violence” and claims Penn “was charged with domestic assault” sometime in the Eighties. It names no sources, and mentions nothing of a baseball bat. It’s not clear, then, how The Washington Post verified the general claim of domestic assault, or the particular weapon Penn used against Madonna.1

For the second allegation, The Daily Beast linked to the aforementioned Daily Mail piece, which came out in March 2009 and largely supported The Daily Beast’s assertion. It even noted that, “In June 1987, Madonna went to the Cedars Sinai hospital [in Los Angeles] for an X-ray after Penn apparently hit her across the head with a baseball bat.” It also quoted a law enforcement agent named “Bill McSweeny” who apparently encountered Madonna after an altercation with Penn: “I hardly recognised her as Madonna. She was weeping, her lip was bleeding and she had obviously been struck.”

The Mail piece, though apparently definitive, is strangely written. It leaves unclear how exactly the piece’s authors were able to confirm any of their article’s claims. How did they know, for example, that Madonna went to the hospital for an X-ray after Penn struck her with a baseball bat? Did the facility confirm the singer’s admittance? And did they speak directly with the law enforcement agent who describe Madonna’s bloodied lip? Or did they speak to someone else?2

These flaws are particularly troublesome because nearly every contemporary account of Penn’s alleged domestic violence relies, either directly or indirectly, upon the same Mail article. Confirming or denying the various allegations against Penn therefore entails getting to the bottom of the Mail’s sourcing. It’s unlikely, after all, that its claims came out of nowhere. But where exactly did they come from? What sources did they rely upon? And were those sources credible?

Sean Penn has confirmed in multiple interviews that Madonna summoned the Los Angeles County Sheriff’s Department to their home on Malibu’s Carbon Mesa Road on the night of December 28, 1988. (Not 1989, as numerous outlets—and Madonna’s own affidavit—have mistakenly noted.) Beyond that, however, the details of that night are still fairly murky. It’s unclear, for example, whether or not Penn was actually arrested. (In Gawker’s original post about his defamation lawsuit against Lee Daniels, we claimed he was in fact arrested, but as we noted in our correction, the available evidence isn’t at all definitive one way or the other.) And Madonna, for her part, has never publicly addressed why exactly she asked the L.A. Sheriff to intervene.

Making matters even murkier is how the Los Angeles County Sheriff’s Department deals with older police records. When we asked the agency for the related incident report, a sheriff named Jim McDonnell told us that documents dated before 1992 “have been purged from our system in accordance with our retention schedule and are no longer available.” He later explained that the agency does not even keep track of which records have been purged.

The lack of an official record makes it difficult, but not impossible, to grapple with the many questions surrounding that night in Malibu. Following Penn’s lawsuit, we began combing through hundreds of reports regarding the alleged incident that have appeared over the past 27 years—including newspaper articles, magazine essays, several books, and various archives in New York and England—to see how many of them can be answered.

January 1989

The first account of the alleged incident emerged in the January 8, 1989 edition of The People, a Sunday tabloid paper published by Trinity Mirror, the largest media conglomerate in Britain. There are virtually zero references to, or copies of, the article on the public Internet. However Gawker recently obtained an original copy of the January 8 edition from a newspaper archive in Hertfordshire, England. Under the front-page headline “MADONNA FOUND BOUND AND GAGGED,” the article begins:

SEXY pop star Madonna spent New Year’s Eve trussed up like a turkey after being cruelly battered by her drunken, bully-boy husband Sean Penn. The terrified singer was beaten, gagged, strapped to an armchair with flex and left for nine hours.

She is said to have been “frothing at the mouth” when horrified staff freed her at 1am on New Year’s Day. “The was the final degradation after three years of hell,” said a secretary at the singer’s Malibu mansion. “Madonna was weeping. Her lip was bleeding, her spirit was crushed. She was marked and sore where he had cracked her across the face.”

According to the report’s author, Peter Kent, Malibu law enforcement confirmed their “peripheral involvement”—i.e., they were called to investigate an incident at the same house. But Penn’s publicist, Kent noted, “shrugged off the incident as part of a young couple’s normal ‘ups and downs.’” A spokesperson for Madonna’s record label, meanwhile, issued a bizarre non-denial: “I find it hard to believe Sean would act this way. This sounds like a madman—and there has been nothing in his recent behavior to indicate that he is completely insane.”

The degree to which any outlet or article can be trusted to tell the truth is a matter of debate. But nothing within the text of The People’s report suggests its author decided to invent the events described in the piece. This is not to say his account is completely consistent with other ones: While every other report placed the incident on the night of December 28, 1988, The People placed it, apparently in error, on January 1, 1989. Nor is it to ignore the inherent difficulty in determining the accuracy of any piece of writing that purports to describe an event that you did not personally witness: You can’t possibly experience everything you read about. But if you consider The People’s sourcing—an eyewitness, statements from both parties (neither of which disputed the report’s particulars), and confirmation of police involvement—neither the erroneous date or the natural limits of human knowledge is enough, in and of themselves, to discredit the allegation that Penn bound and beat up Madonna.

News of The People’s allegations reached the United States two days later, on January 10, when New York Daily News gossip columnist Liz Smith featured The People’s report as her syndicated column’s first item. No copies of this particular column are available on the Internet, but we were able to find one preserved on microfilm at the New York Public Library. Under the heading “Brits tell a tale of Madonna bondage,” Smith wrote:

BRITAIN’s tabloid titled The People has a big headlined story dated Jan. 8 in which they claim that Madonna spent New Year’s Eve “trussed up like a turkey” after being beaten, gagged, strapped to an armchair and left alone by Sean Penn for nine hours. They say the very next day, the outraged Madonna filed for divorce.

“Although I have no evidence that this happened,” Smith continued, “sources close to Madonna who told this column last week that the marriage definitely over, also hinted at the time that the split had come after some particularly violent episode.”

Major American outlets began to flesh out the alleged incident’s fallout the day thereafter, beginning with the Associated Press reporting that Madonna had filed—and later withdrawn—an assault complaint against Penn. “Contents of the report were not disclosed,” noted the A.P., whose report was preserved by the news archive Lexis-Nexis. “However, the British tabloid press reported that Madonna was beaten, gagged and left strapped to an armchair for nine hours before she escaped.”

USA Today went even further in their own report:

The complaint was filed after L.A. County sheriff’s deputies responded to a disturbance call at the couple’s Malibu home Dec. 28. They determined ‘that a possible assault had been attempted,’ said Detective John Flaherty of the Malibu station. Prosecutors and Madonna’s spokeswoman refused to discuss the incident.

Both the A.P. and USA Today included a statement from a deputy district attorney named Al Albergate: “Madonna asked that there be no criminal charges pressed. There is no other evidence with which to base a criminal charge so there won’t be a criminal charge filed.”

March 1989

Between her and Penn, Madonna was the first party to acknowledge the incident, during an extended interview with the journalist Bill Zehme for the March 23, 1989 issue of Rolling Stone. Rumors about the altercation were still in full force, so Zehme prefaced a transcript of their exchange with a lengthy run-down of what people in Hollywood were talking about:

Rumors surrounding Madonna’s “night of terror” (December 28th, 1988): A drunken Sean explodes at Madonna in their Malibu estate because (a) having a baby in the near future does not jibe with her plans; (b) he is annoyed at her friendships with Warren Beatty and/or Sandra Bernhard. Sean demonstrates his displeasure by (a) roughing her up; (b) threatening to thrust her head into an oven; (c) hogtying her with leather straps (and/or twine) to a chair and leaving her “trussed up like a turkey” (tabloid description) for nine hours. She persuades him to release her and/or escapes to the Malibu sheriff’s office, where she swears out an assault complaint against her husband. (The complaint, which was actually filed, is withdrawn by her days later.) She then seeks refuge in the home of (a) photographer friend Herb Ritts; (b) her manager, Freddy DeMann.

Madonna obliquely denied these rumors to Zehme:

Zehme: How accurate are the tabloid tales of your night of terror—the nine hours in bondage?

Madonna: Extremely inaccurate, as they usually are. They made it all up. But I expect it. They’re always making shit up. I’ve completely reconciled myself to that fact.

Shortly thereafter, Zehme pressed Madonna about the police report she filed with the Malibu sheriff:

Zehme: But you did file and later drop charges with the Malibu police, right?

Madonna: [Pauses] I understand your position. People want to hear the dirt. But this is not really anything I want to talk about here. It’s totally unfair to Sean, too. I have great respect for him. It’s like most relationships that fail. It’s not one thing, it’s many thing that go on over a period of time.

By contending that everything had been made up by tabloids—while otherwise refusing to specify why she had filed and later withdrawn a police report against Penn—Madonna placed the rumors in the odd state of limbo usually reserved for urban legends. “But what exactly did happen between them?” Liz Smith would write two years later, in October 1991. “That’s still a popular Hollywood parlor game.”

October 1991

The first major break about the incident’s particulars appeared in Douglas Thompson’s Madonna Revealed: The Unauthorized Biography, which was published in the United Kingdom in October 1991 and is by all accounts the first major biography of the singer. The relevant section of the book, on page 114, begins:

It was just after 4:00 P.M. on December 28 when Penn broke into his own home. Madonna had allowed all the help time off for the holidays. Penn put Madonna through hours of terror. He hit her, he tied her up, and he humiliated her. He also sexually assaulted her.

It’s not immediately clear how Thompson determined this sequence of events. However, he appears to have been the first journalist to locate and interview Lieutenant Bill McSweeney, one of the Malibu sheriffs who witnessed Madonna approach the sheriff’s station and disclose what Penn had done to her. Citing California’s privacy laws, McSweeney refused to disclose the precise nature of Penn’s alleged depredations, but supplied enough context for Thompson to perform an educated guess:

Lieutenant McSweeney would not specify the sexual offenses Penn inflicted upon Madonna other than to tell me: “It was a unique, specific type of violence.” he did did indicate it was an act where California law is constructed to protect the privacy of victims. And under Deering’s Penal Code these are [oral copulation, penetration by any foreign object, sodomy, and rape]. …

She was held captive for nine hours or four days, depending on which account you accept. But McSweeney offered this view: “It was all over by the time we got there. The act had been completed.”

“It was a serious matter. It was something that if prosecuted would have had great implications. It was fully explained to her what charges she could bring.”

Penn could not, as Madonna’s husband, have legally raped her. McSweeney indicated he would have been charged with one or more of the three other offenses.

Later on, Thompson refers to an “assault report” the sheriff’s department has produced in relation to the incident—“The details of her assault report were sealed—until now.”—but it’s unclear whether Thompson ever obtained that document; nowhere in the book does he appear directly quote from it.

November 1991

Sean Penn finally addressed the incident during an interview published in the November 1991 issue of Playboy, where he confirmed that some kind of incident occurred but rebutted the thrust of the rumors surrounding it. Here’s the relevant passage, on page 72:

PLAYBOY: We have to ask this, so help us out: What about the biggest rumor, that Sean-Penn-tied-up-Madonna-for-nine-hours thing?

PENN: Don’t forget the rest of it: And dressed her up like a turkey. After I read that stuff, I thought long and hard about what one would do to dress someone up like a turkey. And I nailed it. I figured you’ve got to get out the Playtex glove, blow it up and put the glove over the head. [Laughs]

PLAYBOY: Is any of it true?

PENN: I was looking at locations in Vancouver when I read about it. At that point it was … a welcome fantasy. It was also a great disappointment to some of my acquaintances to tell them that it hadn’t occurred.

PLAYBOY: So you never tied her up?

PENN: My biggest question is, Why didn’t anybody ever ask her that? She can tell them I didn’t.

In the same interview, Penn acknowledged that law enforcement officers had indeed been summoned to his and Madonna’s house that night, but blamed their presence on Madonna’s apparently misplaced fear of Penn’s collection of firearms:

PLAYBOY: What did occur on that last day?

PENN: A SWAT team surrounded my house and came in every door. But it happened because on the day that we split up, she developed a concern that if she were to return to the house, she would get a very severe haircut.

PLAYBOY: You mean haircut of head hair?

PENN: I think that’s what she thought. So she took this concern to the local authorities, who came back up to the house. She felt the responsible thing to do would be to inform them—since they were coming up there ostensibly to keep her from getting a haircut and to let her gather some personal effects—that there were firearms in the house.

PLAYBOY: True?

PENN: Uh, yes.

PLAYBOY: What were you doing when the cops arrived?

PENN: Eating cereal.

PLAYBOY: Did they slap you against the wall?

PENN: No, they did what they had to do pretty decently, considering that they thought they were coming in to a volatile situation with firearms.

PLAYBOY: What about the charges Madonna supposedly filed and then withdrew?

PENN: [Quickly] She never filed any charges at all. They didn’t need a search warrant to come in, because she was a co-owner of the house. Go down to the D.A.’s office or call them up. There’s no charges. I was never arrested.

These passages raise a obvious question: Why did Madonna say the tabloids “made it all up” if, according to Penn, at least two important aspects of the rumors—that Madonna spoke to police; that those police visited the house in Malibu—were true? And if those aspects were accurately reported, what else was, or wasn’t?

It’s true that Madonna seemed concerned primarily with not discussing the incident in her Rolling Stone interview. Penn, by contrast, used his exchange with Playboy to try to clear the air about what happened, by which Penn certainly gives the impression of somehow coming clean.

On closer inspection, however, that impression begins to look suspect. It’s not just that Penn misconstrues the primary allegation (that he had “trussed up” Madonna as one might bind a Thanksgiving turkey with string, not literally dressed her up like a turkey). It’s that, except for Madonna’s charges, his arrest (or lack thereof), and the presence of police, the actor never specifies what did or did not happen that night. In response to the magazine’s most pointed question—So you never tied her up?—Penn simply tells them to go ask Madonna about it, so she can tell them he never tied her up. Given Madonna’s extreme reluctance to divulge anything about her marriage to Penn, this seems less of an answer and more of an evasion.

August 1992

An even clearer picture emerged in the summer of 1992, with the U.S. publication of Christopher Andersen’s Madonna: Unauthorized, the second major biography of the singer.

Beginning on page 259, Andersen discussed the context of the altercation, assembled a detailed timeline of Madonna’s captivity, and delved into the nature of the local cops’ response:

Christmas dawned like D-day at the Malibu house. After another shouting match, Penn moved in with his parents. From there, he made several abusive phone calls to Madonna. When she stopped answering the phone, he left obscenity-laced messages on her answering machine.

Three days later Penn, frustrated and drunk, staked out the Malibu house. Around four P.M., after Madonna had given her small household staff the rest of the day off to go to a party, he scaled the fence encircling the estate, broke into the house, and confronted a terrified Madonna. After slapping her around, he bound and gagged her, then strapped her to a chair with twine. He berated and beat her for two hours, then stormed out of the house.

Gagged, tied up, and trembling with fear, Madonna waited for hours for help to arrive. Incredibly, Penn returned, swigging tequila from a bottle, and began tormenting her all over again. This time, she managed to persuade him to untie her. Once free, she dashed out of the house, jumped into a coral-colored 1957 Thunderbird Penn had bought her for her twenty-eighth birthday, locked the doors, and called the police on her car phone. She then sped off to the Malibu sheriff’s station to swear out a complaint against her ex-husband. There, bruised and bleeding, she told the horrifying story of her nine-hour ordeal to dumbstruck officers.

As you may have noticed, this part of Andersen’s account does not entirely conflict with Penn’s own retelling the year prior, in the pages of Playboy. The only crucial difference is that Andersen openly claims Penn tied Madonna up, whereas Penn evaded any explanation of what he did, or did not do, to his ex-wife. Andersen’s account continued:

As Madonna sought refuge at the home of her manager Freddy DeMann, sheriff’s officers descended on the Malibu house. Heeding Madonna’s warning that her husband might be armed, they circled the house. Guns drawn, they ordered Penn over a police bullhorn to surrender. Their command echoed off the Malibu canyon walls: “Sean Penn, come out with your hands up.”

Handcuffed and carted unceremoniously off to the sheriff’s station, Penn told police that Madonna had trumped up the charges to get even with him for dating a stripper. Not so, said the friends in whom Madonna confided. They had seen plenty of evidence of Penn’s abusive behavior over the years.

You’ll notice that Andersen’s account matches up with The People’s original account in several aspects (the approximate length of the episode, the implements with which Penn bound Madonna, the involvement of alcohol). You’ll also notice Anderson’s assertion that, in apparent opposition to Penn’s statements in 1991 and 2015, the actor was arrested after the altercation.

The sourcing of Andersen’s account is somewhat hazy, however. According to his book’s endnotes, he interviewed seven people for the chapters in which he discusses this incident—Erica Bell, Melinda Cooper, John Marion, Robert Mosconi, Anthony Savignano, and Stephanie Mansfield—but doesn’t specify who told him what. Furthermore, his endnotes carry the following disclaimer: “The author has respected the wishes of many interview subjects not to be named and accordingly has not listed them here or elsewhere in the text.”

This is not to say that Anderson, who by all counts is an accomplished journalist, should be considered untrustworthy. Madonna—Unauthorized did not come out of a third-rate publishing house or have a crank editor overseeing it; it was published by Simon & Schuster and edited by Fred Hills, who spent 26 years at the publisher and edited Vladimir Nabokov. And, perhaps most telling of all, neither Penn nor Madonna attempted to refute Andersen’s reporting, before or after the book’s publication.

July 2001

The most complete account of Madonna’s ordeal appeared in July 2001, upon the publication of J. Randy Taraborrelli’s Madonna: An Intimate Biography, which appears to be the the main (albeit uncredited) source of the 2009 Daily Mail piece.

As with Madonna: Revealed and Madonna: Unauthorized, Taraborrelli’s biography was unauthorized by its subject. Unlike Andersen or Thompson, however, Taraborrelli claimed to have obtained the actual police report from the L.A. Sheriff, which took Madonna’s own testimony after she managed to escape Penn’s captivity.

According to a police report later filed by Madonna with the Malibu Sheriff’s Office, the two began once again to quarrel over Madonna’s decision to divorce. When she told him that she was going to leave the house—at least, according to the official report—he tried to bind her hands with an electric lamp and cord. Madonna fled from the bedroom.

Sean chased her into the living room. Once there—again, according to the report—he tied her to an easy chair with heavy twine. Many other dreadful things occurred—at least according to published accounts of this incident, none of which was ever contested by Madonna—but, suffice it to say, it appears to have been a night of physical and emotional abuse.

As per the police report, Penn was “drinking liquor straight from the bottle,” and his abuse of her went on for several hours, during which time he allegedly smacked her and roughed her up. After a couple of hours, Penn went out to purchase more alcohol. Several hours later, he returned and—back to that police report—continued his attacks against her.

In desperation—again, according to official documents—Madonna finally persuaded Sean to untie her by telling him that she needed to go to the bathroom. Finally free, she ran out of the house. Sean stumbled while racing after her, which gave her an edge. She got into the coral-colored 1957 Thunderbird, which Penn had bought her on her twenty-eighth birthday. She locked herself inside the car.

Taraborrelli also quotes the same eyewitness interviewed by Douglas Thompson, Lieutenant Bill McSweeney, who confirmed that Madonna appeared to have been assaulted. (According to the biography’s end-notes, the interview with McSweeney took place in 1989.) Another officer, whom Taraborrelli does not name, indicated that Penn was in fact arrested some time after his wife arrived at the sheriff’s station:

While Sean pounded furiously on the automobile windows, Madonna called the police on her cell phone. When she had finished speaking to them, she threw the car into reverse, and sped away—headed for the Malibu Sheriff’s Office on Pacific Coast Highway.

“When Madonna staggered into the station [fifteen minutes later], she was distraught, crying, with makeup smeared all over her face,” remembered Lieutenant Bill McSweeney. “I hardly recognized her as Madonna, the singer. She was weeping, her lip was bleeding and she was all marked up. She had obviously been struck. This was a woman in big trouble, no doubt about it.”

Police officers, stunned by details Madonna had provided of her nine-hour ordeal, went to arrest her husband. Sean Penn was still inside the house when the officers pulled up outside. Remembered one officer, “We had to use our bullhorns. ‘Sean Penn, come out of the house with your hands in the air,’ we said. The suspect came out and we took him away in handcuffs.”

A bit later, Taraborrelli quoted the Playboy interview in which Penn provided his version of the same night’s events:

He says he never tied up his wife. He explains that, after a typical argument with him, Madonna stormed out of the house to cool off. He hollered after her that if she dared return, he would cut all of her hair off. He says that as a result of his threat, “she developed a concern that she would get a very severe haircut.” If Sean’s story is true, it’s understandable that the image of her infuriated husband coming at her with a pair of scissors would be a terrifying one to Madonna.

Taraborrelli also included Penn’s (fairly vague) recollection of police officers surrounding his house, though it’s unclear whether Penn provided this recollection in a different interview or to Taraborrelli directly:

Sean was in the kitchen eating Rice Krispies cereal when the authorities arrived, brandishing bullhorns and handcuffs. Sean says the police, fearing that he had a gun, “suggested I come out of the house. They did what they had to do, the way they had to do it. I was cool with that.”

Considering Penn’s insistence that he never attacked (or “tied up”) Madonna, and was never arrested for related allegations, Taraborrelli’s account is rather damning. If Penn hadn’t touched Madonna, then how did she cut her lip? How did she obtain marks all over her body? How did she become so disfigured as to be unrecognizable to Lieutenant Sweeney?

It’s true that, despite its reliance on a government document and a named eyewitness, Taraborrelli’s reporting is somewhat difficult to replicate. As we noted previously, the police report he quotes from no longer exists. According to the Los Angeles County Sheriff, the original document was destroyed sometime in the 1990s, thanks to the State of California’s records destruction policy. Two, Lieutenant Bill McSweeney—who by all accounts appears to be alive and well—did not return multiple emails and phone calls seeking comment.

Taraborrelli confirmed to Gawker, however, that he did in fact acquire a copy of the police report detailing the night of December 28, but later lost it. In an email to Gawker, he said a search of his Palm Springs storage facility, where he keeps his research materials, came up empty: “Sorry, no luck in finding what you are looking for. Wish I could help. Been too many years.” It’s unknown whether any other copy of Madonna’s police report has managed to survive.

As for how he managed to obtain the police report before it was marked for destruction, Taraborrelli explains in the book’s end-notes that he “reviewed the police documents from the LAPD relating to Sean Penn’s arrest in December 1988,” in the midst of “developing a proposal for a book entitled Sean Penn: Lone Wolf.” That book was never published.

April 2006

There is one credible account of the night in Malibu that claims Penn was not arrested. In a long profile of the actor that appeared in The New Yorker in April 2006, staff writer John Lahr asserts the actor “was not arrested in the well-publicized incident.” Even in the absence of any cited evidence, this statement should be treated as credible, given the magazine’s renowned fact-checking department, headed by long-time editor Peter Canby and staffed by sixteen full-time fact-checkers at any given moment. If The New Yorker reports Penn was not arrested, you can be reasonably certain Penn was not arrested.

Except, perhaps, in this case. When I asked Lahr how he determined that Penn was not arrested that night in 1988, he responded via email: “It was very long ago, but the piece was fact checked. So I trust The New Yorker.” A spokesperson for the magazine was similarly evasive. “This story was published nearly a decade ago and we no longer have the checking documents,” the spokesperson said. “We would have verified the information at the time of publication, in 2006.”

The same spokesperson refused to identify the fact-checker assigned to Lahr’s piece, and Peter Canby, who has worked for The New Yorker since 1979, did not return repeated requests for comment. However a former employee who worked at the magazine in 2006 said a fact-checker named Nana Asfour was frequently assigned to check Lahr’s stories. Asfour, who is now a writer and critic based in New York, declined to comment, and The New Yorker’s public relations office did not respond when we asked if Asfour was indeed the fact-checker assigned to check Lahr’s piece. But Lahr answered right away: “She may well have been.” When asked if they regularly worked together, he clarified, “Writers are assigned fact-checkers; they don’t choose them. It’s a roll of the dice.”

After being apprised of the destruction of the police report about the December, 28, 1988 incident, a former New Yorker fact-checker explained to Gawker how the magazine would likely deal with the absence of such evidence:

I think we would definitely not accept a source’s word for the fact that they had not been arrested if the allegation was made that they had been. On the other hand, if you contacted the police department and they said there was no record of an arrest, you would have good reason to accept this as a fact, since you checked with the original source, the police themselves, and they said they had no record of it.

The same former fact-checker added: “If you were going to be really careful, of course, you’d say ‘Penn denies he was arrested and the police say they have no record,’ but if you didn’t think this was a particularly controversial or sensitive point you might not feel the need to go into so much detail about the state of our knowledge.”

It remains unclear, then, what evidence—if any—The New Yorker relied upon when it reported that Penn was not arrested on December 28, 1988. Incredibly, the magazine does not seem to have the slightest idea itself.

September 2015

The most recent account of Penn’s relationship with Madonna—at least in broad terms—is the actor’s aforementioned lawsuit against Lee Daniels, which Penn filed after The Hollywood Reporter quoted Daniels defending Empire star Terrence Howard, who has been repeatedly accused of assaulting a number of women including his ex-wife, by comparing Howard to Penn and Marlon Brando:

[Howard’s] co-stars have been advised not to comment on the ongoing saga, but Daniels can’t help himself. “That poor boy,” he says, fiercely protective of his actor. He then alludes to other actors who have been the subject of domestic abuse allegations in the past. “[Terrence] ain’t done nothing different than Marlon Brando or Sean Penn, and all of a sudden he’s some fuckin’ demon,” says Daniels. “That’s a sign of the time, of race, of where we are right now in America.”

Now, most of Penn’s initial filing is dedicated to listing the actor’s various accomplishments in acting, journalism, and humanitarianism—to establish, apparently, what Penn stands to lose if people begin to think he is comparable to Terrence Howard. The small section where his lawyers argue that Penn is not comparable to Howard reads as follows:

Most problematic, Daniels falsely equates Penn with Howard, even though, while he has certainly had several brushes with the law, Penn (unlike Howard) has never been arrested, much less convicted, for domestic violence, as his ex-wives (including Madonna) would confirm and attest. Nor has Penn admitted to “slap[ping]” a woman or abusing others (as Howard has also reportedly admitted, reportedly asserting that he was acting in self-defense).

What could possibly account for this statement, at least in light of the public record—in books, newspapers, and magazines—over the past 27 years? After all, there seems to be a blindingly obvious contradiction between the established accounts of Penn’s arrest for attacking Madonna in 1988 and Penn’s lawyers arguing that that their client was “never arrested, much less convicted, for domestic violence.”

That contradiction could resolve itself once you consider the extremely careful language with which Penn’s lawsuit is written. For one, Penn’s lawyers are dodging when they insist that their client has not “admitted to “slap[ping]” a woman or abusing others.” Simply because Penn has not admitted to doing something does not mean he has never done that same thing.

Two, it is possible that Penn was not arrested on the grounds of “domestic violence” per se. As J. Randy Taraborrelli notes in his book, Lieutenant Bill McSweeney said that his department was “called to investigate an assault.” That suggests he and his colleagues may not have been aware of the fact that Penn and Madonna were married and/or cohabiting, which would have likely changed how the alleged incident, and the reason for Penn’s arrest, were classified internally.

In any case, the question is not whether Penn has ever been arrested for domestic violence. The question is whether he has ever been arrested over allegations that he tied up and assaulted Madonna on December 28, 1988. And the question that falls out of the last one is: Did Penn tie up and assault Madonna in the first place?

November 2015

After digging up most of the stories quoted above, we reached out to Madonna and Penn for official comment. Madonna didn’t get back to us. But Penn’s lawyer, a former federal prosecutor in Los Angeles named Mathew Rosengart, wrote in an email to Gawker: “As both Sean Penn and Madonna indicated on the public record more than 25 years ago, the notion that Mr. Penn ‘struck,’ ‘tied up,’ or ‘beat up’ Madonna is false, outrageous, malicious, and defamatory. Madonna’s Declaration reconfirms and makes crystal clear that it simply never happened, and the defendant’s statements to the contrary were reckless and defamatory.”

Rosengart added: “If he had done so (which he obviously did not), he would have been arrested and charged. Mr. Penn was neither arrested nor charged, because as we will further irrefutably demonstrate in court and as Madonna has once again confirmed in her Declaration, the defendant’s allegations are false.” He later noted that “we are in possession of incontrovertible evidence of the falsity of the defendant’s statements and his reckless disregard of the truth, and we look forward to litigating the matter in court.”

Madonna’s recent statement is one piece of evidence in Penn’s favor. Another, it seems, is a statement Rosengart obtained from Howard Weitzman, a Santa Monica attorney who represented Penn at the time of the alleged incident. The statement, which Rosengart provided to Gawker, reads:

Sean Penn was never arrested let alone charged with any criminal conduct involving Madonna in 1988. I would have known if Mr. Penn had been arrested for any such alleged unlawful conduct because I represented him during that time period.

But that leaves the police report, if a copy of it can be located, and the account of Lieutenant Bill McSweeney, who has spoken on the record with at least two biographers about the incident. Rosengart did not directly address the matter of the police report, but he did provide a copy of a second affidavit, dated November 20 of this year, which he intends to enter into evidence at some point in the future.

The affidavit is not signed by McSweeney. Instead, it’s signed by an L.A. private investigator named John Marcello, who served in the Army during the Vietnam War before working for the U.S. Drug Enforcement Agency, from which he retired in 1998. According to the affidavit, Marcello interviewed McSweeney in September 2015 (the exact date and location are unclear) about “an unauthorized biography of Madonna” that appears to be Taraborrelli’s:

6. In September, 2015 I interviewed William McSweeney, a former Chief with the Los Angles Sheriff’s Department, in connection with the above-referenced matter.

7. During the interview, I referred Chief McSweeney to an unauthorized biography of Madonna, which implies that Madonna had been “struck” by Sean Penn in 1989 and attributes a purported quote to Chief McSweeney in connection with an alleged verbal dispute between Mr. Penn and Madonna in 1989.

8. Chief McSweeney informed me that he had heard something“about [the unauthorized book] a long time ago,” but he had “never seen it.”

9. Chief McSweeney further stated that, contrary to the purported quote attributed to him, to his recollection, Madonna “never had any wounds or anything like that.”

10. Based upon my more than 30 years of law enforcement expertise and experience, if Madonna had been “struck” or had “any wounds,” Mr. Penn would have been arrested.

The document is unusual for a number of reasons. It does not detail the manner in which McSweeney was interviewed, and lacks both Marcello’s questions and McSweeney’s full answers. It renders McSweeney’s quote to Taraborrelli—“She was weeping, her lip was bleeding and she was all marked up. She had obviously been struck.”—as simply “struck.” It conflates being marked up and having a bleeding lip (as Madonna allegedly was) with having wounds, plural. Every significant declaration the affidavit contains, including “I am aware that Mr. Penn has never been arrested or charged with anything related to domestic violence,” is attributed to the knowledge and opinion of John Marcello (who did not witness Madonna enter the Malibu Sheriff’s station on December 28, 1988), rather than Bill McSweeney (who did).

Still, human memory is a fragile, suggestible thing, so it still may be possible for Penn’s attorneys to cast enough doubt upon McSweeney’s account to render it void. Otherwise, the ambiguities of Marcello’s affidavit would likely benefit Daniels, not Penn.

Which brings us back to that missing police report, the one J. Randy Taraborrelli obtained in 1988 but (understandably) lost track of in the intervening years. We can be reasonably certain that it existed at one point in the past. But what are the chances that someone has another copy lying around—a former sheriff, perhaps, or a former district attorney? Given the prominence of the alleged assailant (who became one of Hollywood’s most accomplished actors) and the alleged victim (who became the most celebrated performing artist of her generation), the odds are likely more than zero.

In the absence of that report, and the testimony of Madonna supposedly contained therein, any truth-claims on the events of that night in Malibu—including those of either involved party—will remain difficult, and perhaps impossible, to accurately evaluate. But even that document wouldn’t be able to explain the way in which this particular story acquired its present shape and force. How did this story, in spite of its still-ambiguous details, become a widespread symbol of injustice?

You may consider the various uncertainties about the incident, or the inherent obstacles in reconstructing any event experienced by only two people nearly three decades ago, to be less important than the undeniable fact that the tale of Sean Penn and Madonna has given people a way to think about, talk about, and potentially change the systems by which men dominate women. If that’s the case, it’s only harder to shake the feeling that, for whatever reason, the story’s residual ambiguity is what Madonna has desired to maintain all along. Up until the moment, at least, when that ambiguity began to look like proof that all of it was true.

Footnotes

1. We were unable to locate the original source of the claim that Penn used a baseball bat to hit Madonna, either in June 1987 or at any other point. The earliest reference to that allegation we could find was an August 16, 1987 article in The Sunday Times of London, accessed via Lexis-Nexis. It noted that Britain’s “tabloid press” (with no mention of a specific outlet) had alleged Penn was “prone to hitting [Madonna] with a base ball bat.” It also included a denial from Penn’s publicist: “Sean Penn hasn’t even got a baseball bat. Why do they write this?” Subsequent reports have claimed Madonna was admitted to the Cedars-Sinai hospital in Los Angeles after Penn used a bat against her, but like The Sunday Times they each lack any record or eyewitness statement to support that specific claim.

2. The absence of proof regarding Penn’s use of a baseball bat is especially noteworthy because that particular allegation has all but fully penetrated the popular narrative of Penn and Madonna’s marriage. In Madonna and Me: Women Writers on the Queen of Pop, a collection of essays published by Soft Skull Press in 2012, the writer Kate Harding included the following question among those she wished to ask Madonna if she had the opportunity to do so: “Does it kill you that Sean Penn is this big Oscar-winning star and director now, and everyone’s pretty much forgotten about him hitting you with a baseball bat?” The fifth edition of Responding to Domestic Violence: The Integration of Criminal Justice and Human Services, a college textbook published in October 2015, straightforwardly asserts: “Sean Penn, actor, attacked his then wife, singer and actress Madonna, in 1987 with a baseball bat.” As with prior accounts, neither book cites any source for this claim.

Email the author: trotter@gawker.com · PGP key + fingerprint · Photo credit: Getty Images · Art by Tara Jacoby