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01:35 - Source: CNN
CNN  — 

Kevin Spacey’s defense team argues in a new legal filing that the busboy who accuses the actor of assault was flirting with Spacey that evening.

“By (his) own account, he did not object to the alleged touching, he did not ask (Spacey) to stop, and he did not in any way remove himself from the situation,” attorneys Alan Jackson and Juliane Balliro wrote in a January filing. “At best, this describes two people engaged in mutual and consensual flirtation, nothing more.”

The filing, which asks the court to preserve texts and digital evidence between the busboy and his girlfriend, represents the first extensive argument in Spacey’s defense in the case.

Spacey, the 59-year-old actor, was arraigned Monday in Nantucket court on a charge of indecent assault and battery. A not guilty plea was entered on his behalf.

The incident allegedly occurred in July 2016. The busboy came forward to police more than a year later. He told police that he did so because he did not want what happened to him to happen to someone else, the complaint states.

Monday’s filing lays out several arguments attempting to attack the busboy’s credibility, in an effort to cast doubt on what happened that night in Nantucket.

“(His) admitted actions during and immediately after the purported three-minute encounter are completely inconsistent with a victim of sexual assault,” the lawyers wrote in the filing.

Experts reject the idea that sexual assault victims all act the same way. For example, during Bill Cosby’s assault trial, forensic psychiatrist Barbara Ziv testified that, generally, it is normal for sexual assault victims to report assaults to police well after the incident.

“We blame victims for not being the kind of victim that we think they should be,” Ziv said at the time. “It’s part of the rape myth that victims report promptly and display a certain set of symptoms.”

What prosecutors say

Actor Kevin Spacey arrived to face a charge of indecent assault and battery in Nantucket, Massachusetts, on January 7, 2019.

The charge stems from an incident in July 2016 at the Club Car, a restaurant and bar on Nantucket. The criminal complaint says that Spacey bought a number of drinks for the 18-year-old busboy. After about an hour of interaction, Spacey rubbed the busboy’s penis in and out of his pants for three minutes, the busboy later told police.

The complaint states that the 18-year-old busboy befriended the actor, known for his roles in the film “The Usual Suspects” and the Netflix series “House of Cards.” The busboy’s shift ended at midnight, after which he changed his clothes and began talking to Spacey.

According to the complaint, the busboy told police Spacey bought him a number of alcoholic drinks, bragged to him about the size of his penis, and tried to get him to go back to the actor’s house afterward.

When the two stood near the piano player in the bar, Spacey reached over and began to rub the busboy’s thigh, the complaint states. Spacey then unzipped the accuser’s pants and rubbed his penis, both in and out of his pants, for about three minutes, he told police.

The busboy filmed a short part of the alleged groping on Snapchat and sent the video to his girlfriend, the complaint states. In his interview with police, investigators showed the busboy that video and confirmed his and Spacey’s clothing that night.

When Spacey left for the bathroom, the busboy left the bar and went home, the complaint states.

What the defense says

However, the defense filing highlighted other aspects of the criminal complaint and took issue with the busboy’s accusations.

“(His) unsubstantiated, after-the-fact claims of sexual assault are patently false,” the attorneys wrote.

Prosecutors acknowledge that the busboy lied about his age to Spacey – he said he was 23 – and falsely said he was a student at Wake Forest University. The defense also pointed out that the busboy “welcomed” drinks from Spacey, let him put his arm around him near the piano, left the bar to smoke a cigarette with him, and gave him his phone number.

“At best, this describes two people engaged in mutual and consensual flirtation, nothing more,” the defense writes.

The criminal complaint, filed in late December, includes several witnesses who say they saw Spacey and the busboy together at Club Car. But the defense points out that none of the witnesses claimed to have personally seen an assault.

Further, the defense said that the short Snapchat video “does not show anything that could be remotely described as assaultive behavior,” the defense argues.

The primary purpose of the defense’s legal filing is to preserve evidence on what the busboy texted and Snapchatted to his then-girlfriend that evening about his interactions with Spacey.

His girlfriend told police that she received a Snapchat of Spacey “touching the front of (the busboy’s) pants by his crotch,” the complaint says. When asked later about the Snapchat video, she said “she only ever saw it twice and she wasn’t able to give any more description than a hand touching the front of (the busboy’s) pants.”

“Any text messages and Snapchats sent during and after the alleged incident are relevant to the issue of consent and whether lack of consent was fairly communicated to (Spacey),” the defense attorneys write.