Bryon Hefner is seeking to toss out charges alleging he forcibly kissed a man and exposed himself to another, arguing they shouldn’t be considered felony crimes even if they’re “disgusting.”
Hefner appeared in Suffolk Superior Court on Wednesday, where his lawyer, Tracy A. Miner, asked Judge Robert N. Tochka to dismiss two of the 10 counts against the 31-year-old, who prosecutors say engaged in a pattern of assaults and misconduct, including repeatedly groping two men against their will and boastfully showing nude photos of yet another.
Hefner, the husband of former Senate president Stanley C. Rosenberg, has pleaded not guilty to all counts.
Miner argued that in two instances, the alleged conduct — even if inappropriate — doesn’t rise to the level of a crime as laid out by prosecutors.
“As they said in ‘Casablanca’, sometimes a kiss is just a kiss,” Miner said of one of the charges, in which prosecutors say Hefner “aggressively” kissed a man against his will after a gathering on a Boston roof deck. Miner said people had been drinking and said Hefner claimed “it was a joke.”
“It may have been unwanted,” Miner said. “But if every social kiss that is unwanted after a social event is a felony charge in Massachusetts, let’s keep the courts open 24/7. . . . Maybe it’s gross. Maybe it’s disgusting. Maybe it’s bad behavior. But it is not a felony.”
The other allegation stems from June 2016, when, prosecutors say, Hefner went to the Boston apartment of another alleged victim, who had been friends with Hefner. The man wanted to rest in his bedroom and told Hefner to wait in the living room. But, prosecutors allege, Hefner tried to climb into bed with him multiple times. The man pushed Hefner away each time before Hefner dropped his pants to his ankles and exposed his genitals and buttocks to the person, prosecutors said.
Authorities said the man was “shocked and alarmed” — wording that is intended to meet a required standard for an open and gross lewdness charge.
Miner argued that “the nudity must be the action that causes the shock,” before reading from the alleged victim’s grand jury testimony, in which he said he was upset, not by what he saw but that “something in [Hefner’s] head told him that it was a normal way to get my attention.”
“That is not a felony crime,” Miner said.
Assistant Attorney General Jennifer Lynne Snook pushed back against Miner’s characterizations of the events, arguing that the man whom Hefner allegedly kissed had only met him briefly before and had described the kiss as “forceful.”
“They were not friends, they were not colleagues,” Snook said. “And frankly the defendant’s excuse . . . that this was just a joke shows that he knows that his behavior was unwanted and inappropriate.”
Snook said in weighing the other charge, the judge should consider the “entire context of the interaction,” including that Hefner had gone into the alleged victim’s bed.
“Here, he was in his own home and in his own bedroom and could not leave the situation,” Snook said. “This was an unwanted sexual overture in his own home, which of course is upsetting.”
Tochka did not issue a ruling at the end of the 10-minute hearing.
Hefner, sporting a scruffy beard and jeans, quickly left the courthouse with Miner after it ended.
The case, which is scheduled to go trial in June, followed a Globe story in November 2017 that detailed allegations against Hefner from four unnamed men who said he had sexually assaulted or harassed them and bragged he could influence Senate business. All four told the Globe they felt powerless to report the incidents because they feared alienating Rosenberg, with whom they believed Hefner held tremendous sway.
Rosenberg resigned from his leadership post and later his Senate seat, after the Senate’s Committee on Ethics released a scathing report citing him for “failures” in leadership.
The charges haven’t been the only legal trouble for Hefner. In August, he pleaded guilty to making hundreds of harassing phone calls to a Lincoln treatment facility when he was a patient there, in some instances purporting to be calling from an adult video store and, in another, “requesting sexual favors,” according to police.
He was sentenced to one year of probation on charges of placing “annoying” telephone calls, and a judge ruled that two other counts of criminal harassment — both misdemeanors — would be continued without a finding for a year.
A former State House aide, who is among the alleged victims in the sexual assault case against Hefner, also sued him and Rosenberg last year before abruptly dropping the lawsuit in October.