Why Kevin Spacey may be found not guilty

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Whatever your opinion of superstar actor Kevin Spacey, 59, as an alleged sexual abuser or serial offender, the Nantucket, Massachusetts, prosecutor’s current case against him is inherently flawed.

Prosecutors, like defense attorneys, don’t choose the facts of their case: They inherit them. As in any case, it’s a lawyer’s ability to minimize detrimental facts while magnifying favorable ones that dictate the outcome. Here, prosecutors have a lot of work to do if they are to secure a conviction.

Spacey appeared in court Monday morning for the first time to face a single felony count of indecent assault and battery. The charge stems from an incident in July 2016 involving a then-18-year-old busboy. Spacey’s attorneys entered a plea of not guilty. The next court date is scheduled for March 4. Make no mistakes about it, there will be a trial.

But based on the evidence currently known from the accuser’s criminal complaint, it does not appear that this is going to be an open and shut case.

That it took his accuser several months to report the incident is the least of the prosecution’s concerns. Many victims delay reporting. They may feel ashamed, humiliated or embarrassed. A victim may also have strong privacy concerns.

Still, a jury will have many questions.

Prosecutors will need to explain why the accuser told Spacey he was a 23-year-old college student. And why he changed clothes to return to the bar at the conclusion of his shift to meet Spacey while having multiple drinks with him.

Prosecutors may argue that he was a starstruck 18-year-old, who was blinded by celebrity. A reasonable argument indeed. This might also explain the excessive drinking and prolonged conversation with Spacey.

The prosecution will no doubt assert that the accuser was just enjoying a night out with a celebrity while harmlessly being showered with attention when things began to turn. They may add that Spacey is to blame for using his celebrity to entice an unassuming victim. That would be yet another reasonable argument.

Prosecutors could also assert that the busboy assented to Spacey’s advances because he was simply embarrassed or didn’t wish to be rude or impolite.

But at the heart of the prosecutor’s case is whether Spacey acted with or without consent.

Faced with the other details from the accuser’s complaint, the jury will begin to question what steps the young man took to signal his refusal or displeasure with such an action.

That’s when the explanations become harder to countenance.

While Spacey was commenting on his penis size and touching the accuser’s thigh, what outward signs was Spacey given showing that his accuser was opposed to these overtures, and that the encounter was not consensual? Remember, the question is not whether Spacey’s actions were unwise, unwanted or unpleasant, but rather, whether they were criminal.

Although the complaint stated that the accuser tried to shift away from Spacey and move Spacey’s hands away, the problem for the prosecution is that while the busboy and Spacey had been seen together that night, no one witnessed an assault.

Could everyone have been so oblivious to what was occurring? Or could it be that the accuser’s apparent objections to Spacey’s advances were not obvious enough to be noted? And if no one else noticed a commotion or the busboy signaling his disapproval, might Spacey himself have misread the situation as well?

Then there is the detail of Spacey rubbing the accuser’s penis for three minutes.

A dramatic three-minute pause in the courtroom by the defense would make one truly appreciate how long a time that really is. Would Spacey know of the accuser’s objection if the accuser did not either verbally stop Spacey from continuing or exert enough physical force against Spacey to make his disapproval obvious?

Afterward, Spacey got up to use the bathroom and the accuser left. The accuser said Spacey texted him that “I think we lost each other.”

This appears to suggest that Spacey believed in his mind that the encounter was voluntary. Then there’s the fact that the accuser had his cell phone in his hand during the alleged assault. Why not call 911? Instead, he was texting with his girlfriend during the encounter to convey what was happening. Since she didn’t believe him, he sent her a Snapchat video. The jury will have to determine whether those actions are consistent with someone being sexually assaulted.

A wild card in this case is what evidence the judge permits a jury to hear about Spacey’s prior alleged misdeeds. If the judge allows the jury to hear evidence of other sexual misconduct, a jury is not likely to look too kindly upon Spacey. Just ask Bill Cosby.

But if the judge disallows this evidence, and the case is about what happened at the bar involving this accuser, the prosecution will have a lot of explaining to do.

In a criminal case, proof of guilt beyond a reasonable doubt is what’s required. That’s a pretty high standard to reach. And the way I see it, that standard is not met by these facts. Based on the evidence currently available, it looks like Spacey could be found not guilty.



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