Confounding new twist in sex assault case against Kevin Spacey, as accuser files civil lawsuit against the actor

Is the criminal case against the actor falling apart? Some experts say so.

The alleged victim in the case, who is not being named by ABC News because he says he was sexually assaulted, asserts in the new civil action that the actor plied him with alcohol at a Nantucket bar in the summer of 2016 before forcibly “touching and fondling” the younger man’s genitals for an extended period of time -- the same allegations underlying the criminal case.

As a result, according to the filing, the complaining witness has “suffered, and will continue to suffer in the future severe mental distress and emotional injuries.”

The civil lawsuit goes on to claim that due to the actor’s “explicit sexual behavior and lewd and lascivious conduct with [the accuser]," the young man "is unable at this time to fully disclose in complete detail to what degree Defendant Kevin Spacey Fowler did abuse [him] emotionally and physically,” referring to Spacey by his birth name, Kevin Fowler.

The civil filing caps a whirlwind month in which a key piece of evidence went missing and the judge in the case ordered the accuser's family to appear in court after the Fourth of July holiday weekend to explain its disappearance.

Neither a spokeswoman for Cape and Islands District Attorney Michael O'Keefe nor Mitchell Garabedian, a civil attorney representing Spacey's accuser, responded to requests for comment about the civil filing and its possible impact on the ongoing criminal case.

'Muddy waters'

In the fall of 2018, Heather Unruh, a former New England television news anchor from ABC's Boston affiliate WCVB, held a press conference to allege that Spacey had forcibly stuck his hand down her 18-year-old son's pants and groped his genitals for several minutes at the Club Car bar in the early morning hours of July 8, 2016, tearfully calling the actor a "sexual predator."

Her son reported the alleged incident by phone to local police in October 2016, and in a subsequent face-to-face meeting with police a year later he told them that the alleged sexual assault took place after he drank eight to 10 total beers and whiskeys with the actor before being groped, according to court records.

Legal experts said that it’s unusual though not unheard of to launch a civil lawsuit in the middle of an ongoing criminal case addressing the same incident, because it could adversely affect efforts by prosecutors to win a conviction in criminal court.

“It muddies the waters of the criminal case,” said prominent Florida defense attorney Mark O’Mara, who successfully defended George Zimmerman against charges including second-degree murder and manslaughter in the fatal shooting of Trayvon Martin in 2012.

“If [the alleged victim] has a civil case pending, then that’s going to come up on cross-examination when he testifies at trial,” O'Mara said.

“The reason you’d love my [client] to get convicted is because you’re suing him for a ka-billion dollars, isn’t that right? Isn’t that why we’re really here?” the Florida lawyer noted, channeling a defense attorney’s cross-examination of such a witness.

Other defense attorneys who have represented high-profile clients and spoke with ABC News about the Spacey case said the civil lawsuit could be seen as another blow to the prosecution’s case.

“It generally is not good for the prosecution because it shows a financial motive, and financial bias is something defense lawyers are going to use in their cross-examination,” said Tom Mesereau, a high-profile Los Angeles attorney who has represented celebrities including Michael Jackson, Bill Cosby and Robert Blake in criminal cases. “They will try to show the witness is biased because they have a stake in the outcome of the criminal case.”

Mesereau told ABC News that it was difficult for him to divine the accuser’s strategy in filing the civil lawsuit now.

“It is possible that the alleged victim’s lawyers want to depose potential witnesses and lock them into statements,” Mesereau observed. “But I don’t know what they’re up to.”

The prosecution’s case against Spacey became further complicated recently over text messages allegedly deleted from the accuser’s phone by his mother that defense attorneys contend could help clear the actor’s name and should have been preserved.

Spacey defense attorney Alan Jackson said in court earlier this month that Unruh told police that she had cleaned the phone of her son’s “frat boy activities” before turning over the phone to police for a forensic analysis. That analysis turned up inconsistencies between screen shots the accuser sent to police from the night of the alleged encounter, and the extraction report completed by prosecutors, Jackson said.

'What the hell was he thinking?'

“At 1:41 a.m. [on July 8, 2016] there was a text, according to the forensic report, that [used the alleged victim’s first name, which urged him] to “leave and go home,” Jackson said in court.

In response, according to Jackson, the alleged victim texted back, “‘Should I, actually?’”

Portions of subsequently-deleted text exchanges cited by Jackson turned up the words “picture” and “help," according to the attorney.

Before "he handed the phone to police, he deleted the entire message except the word 'help'," Jackson contended. "Their extraction report only shows 'help.' That's the kind of cleansing [the accuser] and Heather were undertaking."

Jackson also accused the district attorney's office at the same hearing of misleading the defense for months by implying that the office remained in possession of the accuser's cell phone, when in fact it had been returned to the man's family after the forensic examination was completed. An assistant district attorney in court that day characterized the issue as a misunderstanding.

One prominent defense attorney suggested that the filing of the civil lawsuit could signal the beginning of the end of the criminal case against Spacey.

“No attorney in their right mind would do this unless they wanted to get their name in the papers,” said Geoffrey Fieger, the Michigan-based attorney who defended Dr. Jack Kevorkian in numerous doctor-assisted suicide trials, beginning in 1994. The doctor was acquitted at all the trials in which Fieger represented him.

“The number one rule in a criminal case, if you are the complaining witness, is you never – let me repeat: never -- file a civil lawsuit while the criminal case is pending, or you can kiss the criminal case goodbye,” Fieger told ABC News.

“This puts [the accuser] in worse jeopardy than he was before -- and allows Spacey to go after him in a way that he couldn’t have before," Fieger continued. "Because the [accuser] can now be subject to civil discovery, civil damages, Kevin Spacey going through his entire life through discovery. And you’ve sunk the criminal case – the prosecutors will probably have to drop it. There’s no justification – zero justification – for a move like this. What the hell was he thinking?”

New York criminal defense and civil rights attorney Ron Kuby concurred with his colleagues’ reading of the situation.

“This is not an ideal solution from the standpoint of the state’s interest,” Kuby told ABC News.

“Now, it may have come to pass that the case is such a disaster already that the prosecutor is simply looking for a way out, and this provides a way out without losing any prosecutorial integrity.”

“The prosecutors are likely thinking one of two things this morning: either A – they’re angry that they’re complaining witness has sabotaged their case, or B – a case that is already falling apart has continued to disaggregate further, and they can’t be blamed.”

ABC News' Aaron Katersky and Brad Martin contributed to this report.