Trevor Bauer: The Vague Line Between ‘Rough’ Sex & Sexual Assault

In recent news, Trevor Bauer has been accused of sexually assaulting a woman, with whom he was romantically involved. During a recent court hearing on July 23rd, a judge granted a temporary restraining order against Mr. Bauer. However, this is just the beginning of what is likely to be a very complicated legal matter to resolve.

This article will aim to summarize the facts of the case as well as discuss some of the difficulties in the prosecution of sexual abuse cases, and lastly; use aspects of this case to guide you in any situation you may find yourself in.

What Did Trevor Bauer Do?

Like most things, it depends on who you ask. 

Bauer’s attorney went on the record to state that, “Mr. Bauer had a brief and wholly consensual sexual relationship initiated by [the woman] beginning in April 2021. We have messages that show [her] repeatedly asking for ‘rough’ sexual encounters involving requests to be ‘choked out’ and slapped in the face.” These aforementioned acts, regardless of how seemingly aggressive they appear, are noted to have been initiated by the woman. Additionally, Bauer’s attorney goes on to say that he believes the accusations are defamatory (slanderous) in nature.

Per the victim’s lawyer,  Bauer strangled the woman until she passed out, then proceeded to copulate with her unconscious body, penetrating areas of her body without consent. As a result of this encounter, the victim was reported to have two black eyes, an inflamed lip, and a severely bruised face.

Two Defenses to Sexual Assault

In any sexual assault case, there are essentially two overarching defenses: 

• “It wasn’t me”

• “It was consensual”. 

Being that it is an established fact that Trevor Bauer did, in fact, have sexual relations with the alleged victim, it is assumed that the defense will be that whatever occurred between the parties was “consensual”. If a jury concludes that sexual relations occurred as described by the alleged victim, they must further find beyond a reasonable doubt that the sexual activity was not consensual in order to convict Bauer.  So the question becomes how is a jury to determine whether the sexual activity was consensual?  

The line between ‘rough’ sex and sexual assault can be vague. Some common factors that a jury will likely consider are:  

• Aggressive sexual behavior is a pleasurable experience for some
• There are varying power dynamics inherent in many sexual situations

• The “static” nature of consent

• How much a part does sexual experimentation play in a particular case

In addition to the above areas of discussion, it is critical to note that if consent is given, it can be withdrawn at any time. The question then becomes, “what are the necessary and sufficient conditions of consent”, and “were they present at the time the alleged crimes occurred?

California Penal Code 261 (4a) explicitly states that “rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, where a person is at the time unconscious of the nature of the act”. If the jury believes that Bauer engaged in sexual acts with the alleged victim while she was unconscious, their decision should be relatively easy. In addition, if the jury believes that the injuries the alleged victim claims she sustained were inflicted by Bauer, that will be something difficult for the jurors to ignore.

 However, looking at the case from the defense perspective there is some evidence being mentioned by the defense that could lead to a not guilty verdict. One issue with the accuser’s story is that it is alleged that this was not the first “rough” sexual encounter between the alleged victim and Bauer. It is claimed that months before the incident in question the woman had sex with Bauer in a very similar manner, including being choked unconscious in the process. Bauer’s lawyer will likely contend that despite the aggressive nature of the first acts, the woman continued to sexually communicate with Bauer and even agreed to engage in sexual activity again. 

In addition to the obvious intent to have sex with Bauer, regardless of how it was going to happen (based on the previous experience), Bauer’s team released screenshots of text messages between Bauer and the woman, in which she (the accusor) solicited ‘rough’ sexual favors, even explicitly asking him to choke her out. 

The Future of The Bauer  Case

Our law firm has handled hundreds of sex crime cases. In many of those cases, there are only two witnesses. When it is a “he said-she said” situation often the prosecution decides not to proceed. However, in this case, there appears to be substantial physical evidence that could lead to criminal charges being filed. A tremendous amount is at stake for both the alleged victim and Mr. Bauer. The prosecution is taking a long time to make this decision.

The final decision may come down to the differing burden of proof in a criminal case vs. a civil case. In a civil hearing, the required level of proof for a plaintiff to prevail is by a “preponderance of the evidence. What this means is a juror can side with the plaintiff if the juror believes a “majority” (or 51%) of the evidence supports his or her claim. In criminal trials, the prosecution must convince the jury beyond a reasonable doubt of the guilt of the accused. This is the highest level of proof required in any court matter.

In addition in a civil case, only nine out of twelve jurors must agree on the verdict. In a criminal case, all twelve jurors must unanimously agree on the verdict.

Whether criminal charges are filed on behalf of the alleged victim in this case, she has already retained a civil law firm to litigate against Mr. Bauer. That lawsuit is likely to go on for a long time. However, in that litigation, the issue will strictly be about “money” and not about Mr. Bauer’s freedom.

Wallin and Klarich will be following developments in the Bauer case and bringing you our take on those happenings as they unfold. 

Contact An Experienced Wallin & Klarich Criminal Defense Lawyer Today

With over 40 years of experience, Wallin & Klarich is prepared to help you get the best outcome possible in your criminal case.  Give us a call today and let’s discuss ways in which we can help you!

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles, and San Diego, you can find an experienced Wallin & Klarich attorney to help you no matter where you are located. 

Contact our offices today at (877) 4-NO-JAIL or (714) 587-4279 for a free, no-obligation phone consultation. We will be there when you call.