After Bauer Argues Any Woman Who Agrees To Have Sex With Him Assumes The Risk Of Being Assaulted While Unconscious, MLB Must Make A Decision Re Suspension

The ex-parte temporary restraining order in California against Trevor Bauer has been denied. Craig Calcaterra writes that the decision of Los Angeles County Superior Court Judge Dianna Gould-Saltman is not unreasonable, but he calls some of her statements from the bench "wildly off-base and possibly even dangerous".

He references this ESPN article, which reports the judge stated the woman's injuries were not the result of anything to which she verbally objected. Her "injuries as shown in the photographs are terrible", Gould-Saltman stated, but: "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."

Calcaterra states that the judge appears to be saying that you can do anything you want to an unconscious person as long as the person doesn't explicitly forbid you from doing that specific act beforehand.

The accuser testified under oath that Bauer struck her and sodomized her while she was unconscious. She testified that she did not consent to that. Indeed, being punched and sodomized while unconscious was never even discussed. Bauer presented no evidence to contradict that. In arguments, his lawyers admitted that that's what happened but claimed, with no evidentiary backing and in the face of her testimony to the contrary, that she asked for it. Like, they actually said that. That she wanted to be punched and sodomized while unconscious.

Apart from that being patently ridiculous and against the only evidence adduced at trial, I know of no legal theory whatsoever that allows for someone to punch and sodomize an unconscious person. . . . (my emphasis)

In addition to being both legally and logically wrong, the judge's statement will do two things, according to Calcaterra:

(a) provide the basis for Trevor Bauer's fanboys out there to erroneously claim that there was legal vindication or "proof of innocence" or what have you, which will be obnoxious; and (b) to deter women from coming forward in sexual assault cases by virtue of her giving voice to an unreasonably high and counterfactual legal standard. Both of those things are plenty bad. (my emphasis)

Calcaterra believes it is now much less likely that Bauer will face any criminal charges after the DA has seen:

what potential jurors will take from a week's worth of slut-shaming . . . and the judge's unnecessary and irresponsible statement about consent . . . [T]the old playbook of defending sexual assault allegations by painting women as promiscuous, money-grubbing liars who, actually, want to be brutalized was given a hearty endorsement by Trevor Bauer, his high-priced legal team and, inexplicably, Los Angeles County Superior Court Judge Dianna Gould-Saltman.

Major League Baseball's Joint Domestic Violence, Sexual Assault and Child Abuse Policy does not require an arrest, criminal charges, a criminal conviction, or a finding beyond a reasonable doubt.Here's how "sexual assault" part of the policy is defined, with key emphasis added:

Sexual assault refers to a range of behaviors, including a completed nonconsensual sex act, an attempted nonconsensual sex act, and/or nonconsensual sexual contact. Lack of consent is inferred when a person uses force, harassment, threat of force, threat of adverse personnel or disciplinary action, or other coercion, or when the victim is asleep, incapacitated, unconscious or legally incapable of consent.

If the Commissioner's office concludes Bauer did anything sexually to the woman while she was unconscious, Bauer is guilty of sexual assault under the MLB policy and must be suspended. During the recently-concluded hearing, the woman testified under oath that before she was rendered unconscious, she had not consented to being either choked until unconscious, beaten or sodomized. Bauer then proceeded to choke her until she was unconscious, beat and sodomize her.

Calcaterra:

Bauer presented no evidence to contradict those assertions. Indeed, Bauer took the Fifth and Bauer's attorney conceded in argument during the hearing that Bauer choked his accuser until she was unconscious and was violent towards her while she was unconscious. . . . There was no apparent impeachment of her credibility as it related to what occurred between the two of them at Bauer's home.

I do not know how Major League Baseball, taking all of that into account — and taking the recently-revealed allegations against Bauer arising out of his behavior in a similar case in Ohio — cannot issue a lengthy suspension of Bauer immediately. If it does not, Major League Baseball's Joint Domestic Violence, Sexual Assault and Child Abuse Policy is, essentially, a dead letter because, if you do not punish what Bauer has done, what can you punish? (my emphasis)

Sheryl Ring of Beyond the Box Score also offered exemplary coverage (Day 1, Day 2, Day 3):

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, [one of Bauer's lawyers, Shawn] Holley reiterated that Bauer had, in fact, assaulted the petitioner. . . .

Bauer also admitted to punching the petitioner whilst she was unconscious on a recorded telephone call. . . .

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. . .  .

[T]his case isn't the ringing victory Bauer' 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. . . .

The testimony adduced at this hearing is likely enough to void Bauer's contract for a couple of reasons.  . . .

I think the Dodgers would have a much stronger case [Ring cites the Rockies' attempt to void Denny Neagle's contract in 2004 after he was criminally charged for solicitation of a sex worker]. For one thing, the allegations against Bauer are much more serious, including multiple instances of similar conduct and courtroom admissions and evidence. . . .

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. . . . 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. . . . 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. . . .  I think a two-year suspension is the most likely outcome, which would be the longest player suspension ever under the domestic violence policy. . . .

[Bauer was able to get the restraining order denied] 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. . . .  [But] he won't be seeing a mound for a long time to come. (my emphasis)

Calcaterra also called out the atrocious coverage of the hearing by the Los Angeles Times:

The coverage has fronted salacious "storyline" things that are legally irrelevant, such as the accuser's past sexual partners and has given breathless style-over-substance play-by-play of Bauer's attorneys' cross-examinations, and has failed to provide legal context to the point of misrepresentation. It has covered the hearing like a sporting event, not like the serious legal proceeding that it is.

We saw this on Tuesday when, at the outset of the cross examination of Bauer's accuser, the reporter on site for the Times, Steve Henson, tweeted "here we go" as if it were the kickoff for a Rams playoff game. There was drama-creating scene-setting about who was wearing what in the courtroom that came off like a description of what color sweaters the Kings were wearing against the Sharks. Yesterday he tweeted about "every crumb of the social media trail" of the accuser, which implies a hidden, secret plan waiting to be discovered as opposed to facts simply being deduced. Throughout Tuesday and Wednesday Henson transcribed testimony yet did not explain the testimony's relevance. Meanwhile he left out the concession on the part of Bauer's attorney on Tuesday that Bauer hit her and anally penetrated her while she was unconscious. As mentioned above, much of that cross-examination Henson transcribed was legally irrelevant here and was aimed at casting aspersions on the accuser. By simply giving it a megaphone, Henson's reportage aided Bauer's attorneys in that regard and simultaneously provided an object lesson about why victims of sexual violence are loathe to come forward and seek justice. (my emphasis)

Trevor Bauer's attorneys cross-examined his accuser during Day Two and made a big deal about her admission that she had sexual relationships with two other major league players in 2019 and 2020. Besides the odiousness of portraying a 27-year-old single woman as promiscuous (and therefore apparently deserving of being beaten) for dating three men over the course of three years, Calcaterra thinks it's a pretty bonehead defense that would likely have the opposite intended effect.

Bauer's case is pretty clearly one in which he wants to portray himself as being targeted with false accusations because he's a rich baseball player. In light of that, why on Earth would you present evidence about all of the other rich ballplayers with whom the accuser had a relationship but who were not accused of doing anything wrong? It's almost as if, you know, that sort of undercuts your entire defense and establishes that Bauer is the outlier and that, no matter who the accuser chooses to spend time with, she is not the sort of person who seeks out ballplayers to victimize with false accusations. . . .

The bigger question is why the judge even allowed the testimony of her past relationships in the first place. . . . [J]udges will often give the side they intend to rule against in a hearing or bench trial tremendous leeway to make their case so that when they are ruled against they have very little basis for appeal. So they can't say they were barred from making their defense, presenting evidence or what have you. . . .

To the extent Bauer's attorney cross-examined the accuser about the assaults in question, she focused on the fact that Bauer stopped hitting the accuser when she regained consciousness. Which is likewise not good for Bauer, I don't think, as it's super illegal to punch an unconscious person no matter how nice you start being when they regain consciousness. Either way, the matter of consent cannot, literally or legally, enter into the calculus when the person tasked with giving consent is knocked out cold. . . .

I'm not at the hearing. . . . I'm relying on what reporters who are there seem to believe is significant enough to mention in tweets and stories. . . . But based on those highlights, it strikes me that Bauer's attorneys would really prefer to talk about anything other than the fact that their client beat up a woman, which is a problem given that the fact Bauer beat up a woman is what this hearing is all about. (my emphasis)