‘How far does consent go?’ Legal experts consider the decision not to charge Trevor Bauer

Legal experts say that L.A. prosecutors’ decision not to file criminal charges against Trevor Bauer will propel evolving conversations about how the judicial system handles cases that hinge on questions of consent, and where boundaries should be drawn in instances involving rough sex.

“This case raises the question of how far does consent go?” said Loyola Law School professor Laurie Levenson. “Where are the limits?”

Last summer, a San Diego woman sought a restraining order against the Dodgers pitcher, saying that after meeting Bauer through social media she had visited his home in Pasadena on two separate occasions earlier that year.

Both times, she said, encounters that began as consensual sex escalated far beyond what she was comfortable with. In both instances, she alleged, Bauer wrapped her hair around her neck until she lost consciousness. During the second encounter, she alleged that Bauer used a closed fist to hit her in the jaw and vagina.

“I felt like my soul left my body,” she testified at a hearing on the restraining order in August.

During that hearing, Bauer’s attorney argued the same point that Bauer himself made Tuesday in his first public comments on the case, following the prosecutors’ decision.

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Bauer said that he and the woman had engaged in rough, but wholly consensual sex on two occasions. The pitcher’s attorneys had previously filed court papers arguing that messages sent by the accuser had made it clear that she had, in fact, encouraged him to choke her during sex. After the second encounter, Bauer’s lawyers wrote in a court filing, the woman had sent a message to her cousin and written, “It was consensual, but I didn’t like expect two black eyes!?”

Bauer released a seven-minute video titled “The Truth,” on Tuesday, saying he was relieved to finally speak publicly on the matter and categorically denying allegations that he had punched the woman in the face and vagina.

“While we did have consensual, rough sex,” he said, “the disturbing acts and conduct she described simply did not occur.”

A judge ultimately denied the request for a restraining order last year, saying there’d been a distinction between what the woman thought permissible and what she had communicated to Bauer. When the woman set boundaries, Bauer had respected them, the judge said, adding that after considering the evidence she’d determined that the woman was “not ambiguous about wanting rough sex in the … first encounter and wanting rougher sex in the second encounter.”

Because the case involved rough sex, the lines were murkier than what is often seen in cases in which sexual assault allegations culminate in criminal charges, said former federal prosecutor Neama Rahmani.

“Usually it’s all or nothing,” said Rahmani. “Usually it’s, ‘I went to his house and maybe I wanted to do X, Y, Z, but I certainly didn’t want to have sex with him.’ There’s a clear line. When the line becomes blurry — ‘I wanted rough sex, but I didn’t want to be choked to the point of unconsciousness’ — when does one cross the line?”

Joshua Ritter, a criminal defense lawyer who worked for years as an L.A. County prosecutor, said a key legal question in considering whether to file charges would have been whether it was reasonable for Bauer to believe he had consent to do what he did — even if those actions would appear stunning to some.

“People can consent to things that we might normally find shocking,” Ritter said, drawing an analogy to people who participate in combat sports.

“People step into boxing gyms and leave there with bruises and swollen eyes, and no one is going to turn around and go to the police and say, ‘I was assaulted,’” he said. “A very similar argument could be made here, if they have the proof that she was consenting to consensual, physically aggressive sexual behavior.”

The woman’s attorney did not respond to a request for comment about the decision not to file charges.

U.S. courts have not always been consistent in their handling of cases that fall at the intersection of sexual consent and physical injury. And there haven’t been many defining cases exploring the complexities of cases involving rough sex, Rahmani said.

Levenson, who is a former federal prosecutor, said she believed that the district attorney’s office faced a complex dilemma in deciding whether to charge Bauer.

“It’s not an easy case,” she said, noting that the messages between Bauer and his accuser, as well as the fact that she continued contact after the first encounter, would have been issues that prosecutors would have had to address at trial.

Levenson said that prosecutors shouldn’t ethically file charges if, after reviewing all the evidence, they don’t think they can prove them beyond a reasonable doubt, which is what the district attorney’s office cited Tuesday as its rationale for declining to file any of the potentially relevant charges, which included assault by means likely to cause great bodily harm and domestic violence.

And yet, Levenson said, prosecutors had to weigh the reality that not filing charges sends a message too.

“It is thorny,” she said. “For prosecutors there is the pressure to bring this case to try to deter actions that go beyond the line.”

And even when consent is involved, she said, there is a line.

“You can’t consent to being killed — there’s not unlimited consent,” she said.

Levenson noted that, unlike in most cases, prosecutors knew that if they brought criminal charges, Bauer’s defense team would use testimony from the civil restraining order proceeding last year to try to discredit the accuser. If even small details in her story had now shifted, Levenson said, the defense could have seized on them.

“The prosecutors are somewhat stuck with her prior testimony,” Levenson said. “The question will be: Why didn’t she say that before?”

Levenson noted that Bauer’s accuser could still file a lawsuit in civil court, where the burden of proof isn’t beyond a reasonable doubt, but more likely than not to be true.