Content warning: This article contains descriptions of sexual violence.
The domestic violence restraining order hearing concluded on Thursday with the Court ruling against the petitioner, dissolving the restraining order she previously entered in petitioner’s favor. But whilst the headlines proclaimed Bauer’s victory, having followed the hearing closely I came to a very different conclusion.
A couple of days ago, in recapping Day 2 of the Bauer hearing, I said this:
I came away from today thinking that Holley and Fetterolf’s strategy is this:
1. Argue that the acts in question are confined to sexual encounters and that there was and is no continuing relationship; as such, no restraining order is necessary.
2. Use that victory, even though it is based on a limited point, to argue in the media that Bauer is vindicated and that the Petitioner must have been lying because they won the hearing.
3. At the same time, show potential other victims what they face by challenging Bauer, using cross-examinations that focus on past sexual histories that grab media attention.
4. If Bauer does end up suspended, use the victory in the order of protection case and the media narrative to push him as the victim.
As it turned out, that’s almost exactly what happened, with the court “find[ing] there is no supporting evidence that the respondent [Bauer] would cause any harm or even have [future] contact with [petitioner.]” It was, in the end, Bauer’s attorney Shawn Holley’s only path to victory, and as I’ve written before, she executed that strategy well.
Holley’s closing argument was mostly spent claiming that petitioner asked for what happened to her, not denying that it occurred. She even argued that the petitioner asked to be bruised. On the other hand, Holley presented this picture of Bauer…
“He’s not looking at his phone, he doesn’t do drugs, he doesn’t drink, he’s kind, he’s not judgemental.”
…and this picture of the petitioner:
“Shes a 27-year-old baseball fan, she’s a recovering alcoholic, she has low self-worth, crippling insecurity … she tells lies to important people, her best friend, her boss, her AA sponsor . . . .” Holley said.
That was part two of Holley’s plan, you see. And if you only read the headlines, you would miss why this hearing was so devastating for Bauer. The court’s ruling was not – contrary to what Bauer’s attorneys would have you believe – an exoneration of Bauer. Quite the contrary; in her closing argument on Thursday, Holley reiterated that Bauer had, in fact, assaulted the petitioner.
“He said he would never do these things if it wasn’t in a sexual context, which I think is believable and clear,” Holley said.
* * *
“As the sex progresses, he puts his fingers down her throat, she motions her hands, he immediately stops, so she now understands if she motions to stop, that’s what he’s going to do, he’s stopping when she wants him to stop,” Holley said.
“He wraps her hair around her neck, she goes unconscious,” she said, adding [petitioner] said she never said she didn’t like that previously.
Bauer also admitted to punching the petitioner whilst she was unconscious on a recorded telephone call. Where Holley won was in emphasizing that petitioner and Bauer would not have sexual intercourse again, and therefore an order of protection was not necessary.
It should also be noted that petitioner’s counsel made several missteps. First, minutes after calling Bauer a “monster” during her closing, she backpedaled and said “Trevor was not evil,” an odd juxtaposition. She also began her closing by bizarrely saying that “[f]or most of Ms. Holley’s argument, I didn’t disagree with her,” which isn’t really what you want to say in that situation at all. But perhaps the petitioner’s counsel’s biggest misstep was pointed out by the court in its ruling, which found that certain statements in the petitioner’s declaration were “materially misleading” – not about the alleged assaults, but rather regarding telephone calls purportedly made by Bauer. You can lose a case on an inaccurate statement in a sworn pleading, even on a collateral issue, and that clearly weighed heavily on the judge here. Finally, they elected not to have their expert witness testify on the issue of consent even after briefing the issue and winning that briefing, which I think was also a mistake.
I also believe the judge made a couple of errors here. Right after saying at the beginning of her ruling that future harm was not necessary to the issuance of a restraining order, she talked about how there was no need for a restraining order because there was no risk of future harm. She also, in my opinion, incorrectly applied the law of consent when it came to this line:
If she set limits and he exceeded them, this case would’ve been clear. But she set limits without considering all the consequences, and respondent did not exceed limits that the petitioner set.
Given a phone call was played in which Bauer admitted to punching the petitioner whilst she was unconscious, what the court stated is an incorrect statement of the law. You cannot give consent to anything when unconscious. In my opinion, that’s reversible error and grounds for a potentially meritorious appeal. California courts have long held – as have courts in most American jurisdictions – that you cannot give consent to any touching when unconscious. As the Supreme Court of California explained,
The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (Italics added.) The term “unconscious of the nature of the act,” . . . is based on this understanding of the consent requirement. Thus, the Legislature has refined the consent requirements for sex crimes to include not only the ordinary circumstance where consent is never given, but also more complicated circumstances where it is obtained through deceit. A woman who is groped on a crowded bus is plainly subjected to a sexual touching without her consent. That is the sense in which consent is ordinarily understood. But . . . a woman who is tricked into a sexual touching under the pretense of a professional purpose is also touched without her legal consent.
Based on this case law, I believe that Judge Dianna Gould-Saltmann misapplied the standard of consent here because the standard from the California Supreme Court clearly forecloses the possibility of consent whilst unconscious.
At the bottom, however, the court’s decision was based on a legal doctrine called assumption of the risk – essentially, that the petitioner assumed the risk of injury at Bauer’s hands as a result of her own actions. Assumption of the risk is different than consent in several respects. First, assumption of the risk typically only applies in civil cases, because the state generally cannot assume the risk of criminal activity by one of its citizens. Remember: criminal cases are between the state and the defendant, not between an offender and victim. Second, assumption of the risk is retrospective, whereas consent is prospective. In other words, assumption of the risk essentially asks the question of whether it was reasonably foreseeable, whereas consent can be withdrawn at any time. The court in Bauer’s case conflated the two principles a bit, but they are very different. And notably, the court found that Bauer did cause the petitioner’s injuries, and she had assumed the risk he would injure her.
And that’s why this case isn’t the ringing victory Bauer’s legal team would have you believe. First, a court basically just ruled that Trevor Bauer is so dangerous that any woman who sleeps with him can reasonably be expected to get physically injured. Moreover, from the evidence adduced at trial in Bauer’s own words and from the mouth of Bauer’s lawyer, Bauer punched an unconscious woman and choked a woman until she was unconscious, because she didn’t say no. Coming on the heels of the Washington Post report that Bauer threatened to kill a woman in Ohio, this is damning – not exculpatory – evidence for a violent proclivity towards women. That Bauer’s attorney attempted to say that he was only violent during sex is not a defense.
Trevor Bauer is still facing potential criminal charges in two states, California and Ohio. Both women also still have civil remedies. Although domestic violence restraining order cases are civil in nature, they do not foreclose civil cases for money damages because money damages are not available. To put it another way, they’re different kinds of cases: a person can lose a domestic violence restraining order and win a civil case for the same conduct because a restraining order protects a person from future conduct whereas a civil lawsuit for money damages redresses for past conduct. Holley’s statements that Bauer choked petitioner unconscious is a judicial admission that can be used against Bauer in later civil proceedings.
It should also be noted that the Dodgers do have recourse here. The testimony adduced at this hearing is likely enough to void Bauer’s contract for a couple of reasons. The standard uniform MLB player contract includes this language:
Paragraph 7(b)(2) is invoked all the time when a player is released for failure to perform well enough. Paragraph 7(b)(1) was used by the Colorado Rockies to terminate the contract of Denny Neagle back in 2004 when he was criminally charged for solicitation of a sex worker, even though the union filed a grievance against the team for doing so. That grievance was later settled; the Rockies paid $16 million of the pitcher’s $19.5 million salary.
Here, however, I think the Dodgers would have a much stronger case. For one thing, the allegations against Bauer are much more serious, including multiple instances of similar conduct and courtroom admissions and evidence. Second, Neagle’s case was buttressed by the fact that he was injured at the time, which allowed him to argue the termination was pretextual; Bauer has no such argument. It should be noted, however, that the MLB Joint Domestic Violence Policy prohibits a player from being disciplined by a team until after they receive MLB permission, and only then when the league has declined to do so.
And so with that, we get to potential discipline from Major League Baseball. Right now, what MLB has to decide is whether they want a pitcher who was just deemed so dangerous that a woman who is with him assumes a risk of injury. Although Bauer invoked the Fifth Amendment right against self-incrimination, the league can (and should) draw an adverse inference from his conduct. In other words, there is more than sufficient evidence that Bauer engaged in conduct that violated both the Joint Domestic Violence, Sexual Assault, and Child Abuse Policy. Even if the petitioner had consented, that does not mean Bauer cannot be disciplined under this policy, because the consent of a third party to help you violate a contractual obligation does not absolve you of your contractual obligation. In other words, if I make a contract with Jim to mow his grass every day for a year, it is not a defense to my refusal to mow Jim’s grass that Todd said it was okay. When Holley said that Bauer choked petitioner until she was unconscious, she necessarily conceded a violation of the MLB policy.
So what will MLB do? This is, by far, the most serious case yet for MLB of an alleged violator, and it’s not close. No other person was accused of multiple violations against multiple victims. No other case, except for disgraced Pittsburgh left-hander Felipe Vazquez, had this much court evidence. No other alleged violator so dramatically attacked their accusers in the press, either. The longest suspensions ever meted out for violations of the domestic violence policy were to Sam Dyson (a full season) and Jose Torres (100 games); as horrifying as the allegations were in those cases, this is somehow worse than both of those cases, and it’s not close. Notably, in none of the other domestic violence cases were multiple orders of protection sought by multiple people against the same player.
Based on those precedents, a two-year suspension issued by MLB would essentially wipe out the remainder of Bauer’s Dodgers contract and almost certainly be upheld on appeal. That would also be comparable to the suspension issued against Mickey Callaway, though even the allegations against Callaway, as atrocious and appalling as they were, fall short of those against Bauer here. I think a two-year suspension is the most likely outcome, which would be the longest player suspension ever under the domestic violence policy. It would also be longer than the 211 games against Alex Rodriguez (later shortened to 162).
Rob Manfred could invoke the precedent of Benny Kauff, John Copolella, or Chris Correa and ban Bauer for life, but I highly doubt those suspensions would be upheld on appeal. Neither Correa nor Copolella was a player, and Kauff was suspended before the MLBPA existed.
So what Bauer won yesterday was the right to be around the woman who accused him of sexually assaulting her. That is…literally all he won. He did so by arguing that he is so dangerous that a woman who agrees to have sex with him assumes the risk of being harmed when doing so. And he made a great spectacle of dragging through the mud the woman he admits to having punched whilst she was unconscious. Bauer got his pyrrhic victory, but what happened this week shows he won’t be seeing a mound for a long time to come.
Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.