Trevor Bauer awaits MLB fate: 'Can you suspend a guy for having consensual rough sex?'

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Major League Baseball finally is expected to make a decision soon about Los Angeles Dodgers pitcher Trevor Bauer. He could get a lengthy suspension, triggering a fight from Bauer after he was accused last year of assaulting a woman during two sexual encounters at his home in Pasadena.

But what would he be suspended for exactly?

He was never arrested or charged with a crime. A California judge heard evidence in the case in August before ruling in Bauer's favor. The judge denied the woman’s request for a five-year restraining order against him, noting that the woman shared responsibility for what happened.

“Given the judge’s ruling in California, can you suspend a guy for having consensual rough sex?” asked Jay Reisinger, an attorney in Pittsburgh who has represented several players who have been suspended under baseball’s domestic violence policy. “That’s what it comes down to. If it’s not consensual, and the commissioner determines it’s not consensual, that’s a different story.”

Reisinger calls it an “intellectually intriguing” situation because of this and the fact there is no precedent for it. All previous suspensions that came under baseball’s domestic violence policy were part of negotiated settlements – not an order handed down by commissioner Rob Manfred.

The policy gives Manfred wide latitude to discipline Bauer, though questions remain about how he will arrive at his decision when Bauer is expected to fight it by saying baseball can’t punish bedroom behavior between consenting adults. A separate situation involving Bauer and a woman in Ohio also could influence the decision, along with any other information baseball uncovered in its investigation.

Here are five key aspects of the case as the decision approaches. Bauer remains in baseball limbo in the meantime, having not played for the Dodgers since being placed on paid administrative leave after these accusations became public late last June.

What could be the basis of a suspension?

Baseball’s Joint Domestic Violence, Sexual Assault and Child Abuse Policy was announced in 2015 after the infamous Ray Rice video in the NFL raised awareness about domestic violence in sports, including in baseball, which had its own video incident fly under the radar before that involving player Brian Giles.

Baseball’s policy gives a broad definition of domestic violence that theoretically could be applied to Bauer’s case even if it was consensual and even if he was not charged with a crime.

“Domestic violence includes, but is not limited to, physical or sexual violence, emotional and/or psychological intimidation, verbal violence, stalking, economic control, harassment, physical intimidation, or injury,” the policy states.

Violence and injury could be key words in this case. The woman went to the hospital after her second encounter with Bauer and was diagnosed with an acute head injury and assault by manual strangulation.

“The injuries as shown in the photographs are terrible,” Los Angeles Superior Court Judge Dianna Gould-Saltman said in her ruling in August.

But the judge also said the woman had “the right to engage in any kind of sex as a consenting adult that she wants to with another consenting adult.”

How does consent figure into this case?

The woman said the encounters began as consensual but then went too far. Bauer said it was consensual rough sex and now is suing the woman for defamation, saying she manipulated the photos of her injuries and plotted for rough sex with him to essentially frame him and get money from him.

The judge heard both sides and addressed the issue of consent from the bench in August.

“We consider that, in the context of a sexual encounter, when a woman says 'no,’ she should be believed,” Gould-Saltman said in her ruling. “So what about when she says 'yes’?”

The judge noted the woman testified that she did not consent to being punched to the point of having black eyes and having to be hospitalized. But the judge also noted that “having black eyes and being hospitalized were the potential consequences of the activities, including some of which the (woman) acknowledged that she did consent to, such as being choked.”

Gould-Saltman further pointed out that during one of their encounters, Bauer stopped when the woman motioned for him to stop and also stopped when she used part of their previously arranged safe word.

“The only evidence of anything which happened while petitioner was unconscious was having been hit on the butt,” the judge stated.

That could matter because baseball’s policy defines sexual assault as a range of behaviors including nonconsensual sexual contact. Lack of consent is inferred when the victim is asleep or unconscious, according to the policy. The policy also says a “single incident of abusive behavior in any intimate relationship” may subject a player to discipline.

What did Bauer say about that allegation?

He didn’t testify at the proceeding in August, citing his Fifth Amendment rights. But he and his representatives have maintained he did nothing wrong. The judge didn’t cite the alleged butt-hitting as a finding, only noting it was the “only evidence of anything which happened” after the woman said Bauer choked her unconscious.

It came out in court from the woman when she testified about exchanging text messages with Bauer at the hospital where she was treated for injuries.

“How did it get this bad … what happened?” she texted Bauer, according to the testimony and an exhibit presented in court at the hearing in August.

“Do you not remember anything?” Bauer replied.

“No of course I do, just not when I went unconscious,” she replied.

The woman’s attorney then asked her in court, “Did he ever explain to you what happened when you were unconscious?”

“No, all he told me was that he punched me in the butt,” the woman replied.

The acts that are covered by baseball’s domestic violence and sexual assault policy are “very broad and very vague,” Reisinger told Paste BN Sports.  “And he (Manfred) has wide latitude (to impose discipline) because there is no precedent.”

It’s also not publicly known what else baseball uncovered about Bauer, who agreed to a three-year, $102 million contract with the Dodgers in early 2021.

What about the Ohio case?

The Washington Post reported last year that a woman in Ohio sought a protection order against Bauer in 2020 after “repeated threats” from him. The Post also reported it obtained photos showing bruises on the woman’s face and blood in her eyes, which her attorney said were caused by Bauer punching and choking her during sex without consent. Bauer’s representatives said this is false.  

The Ohio woman’s attorney, Joseph Darwal, said in a statement to Paste BN Sports last year that his client was assisting MLB in its investigation but declined further comment.

“The 'unknown’ is what has MLB uncovered about Bauer’s other relationships?” said David Ring, an attorney in Los Angeles who has represented sexual assault victims but is not involved in it. “Is there a pattern of 'too rough’ sex and complaining females with injuries as proof?  If so, MLB has a strong case.  If not, and MLB is basing its entire suspension on this recent female (in California), that decision is going to come under fire for sure. Bauer is not going to go down without a massive, ugly fight.”

How long could he be suspended and what is Bauer’s next move?

There have been at least 15 suspensions under the domestic violence policy, including a season-long suspension last year for free agent pitcher Sam Dyson, who agreed not to appeal.

The previous domestic violence suspensions in baseball were “all negotiated settlements and they are not precedent,” Reisinger said. “My guess is there’s going to be a significant suspension imposed, and I think there will be a vigorous defense raised on Trevor’s behalf that probably has a lot of validity.”

It’s possible his time spent on administrative leave could be applied to a suspension retroactively.

But Bauer is expected to appeal any suspension to an arbitration panel, whose decision would be considered binding, Reisinger said.

If that doesn’t work out for him, either, Bauer could try to sue baseball, too, though that would be considered a long shot.

Since March, Bauer has filed defamation lawsuits against his accuser in California as well as two news media organizations he says published false information about the nature of that woman’s injuries after her encounter with him.

Follow reporter Brent Schrotenboer @Schrotenboer. E-mail: bschrotenb@usatoday.com