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Debate: Is “Rough Sex” an Excuse for Assault and Battery?

Los Angeles Dodgers v Houston Astros

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This is an editorial, and as such, contains opinions. No one was interviewed for this article.

“The intersection of sports and the law has reached a boiling point with the allegations that Los Angeles Dodgers pitcher Trevor Bauer punched a woman during a sexual encounter. Bauer claims, through his reps, that the sexual encounter was consensual and involved "rough sex.”Legally speaking, Bauer’s alleged actions would have been more excusable on the baseball field than in the bedroom.

One overall question is this: is “consent” a legal defense for violence during rough sex? The answer is sometimes, but not always. It depends on the level of violence. There have been a series of fascinating cases that have helped define an answer to this question. In her article, “Sex is Not a Sport: Consent and Violence in Criminal Law,” Professor Cheryl Hanna details cases that have asked courts to treat violent sex as a sport. I encourage you to check it out! Hanna began examining the use of the consent defense when she represented domestic violence victims. Their batterers would often attempt to use “rough sex” as a defense for their acts of domestic violence in abusive relationships.

In fact, Hanna reveals that sports are one of the few exceptions where participants may consent to violence. What may otherwise be an assault or battery upon another, is in fact, often legally excused in the context of sports. When players injure one another, they are not prosecuted. So long as the violence takes place within the rules of the game or incidental to the game, consent or assumption of the risk is an excusable defense. When violence occurs outside of those rules, such as when players attack fans, charges will likely be filed, for example, during the NBA’s infamous malice at the palace!

But courts have largely determined that sex is not a sport, and the rules are, in fact, different. Some jurisdictions have authored laws to bar the consent defense entirely when it comes to sadomasochism, frowning upon the practice as morally outrageous. But in other jurisdictions, consent can be a defense, depending on the circumstances and the state where the “rough sex” takes place. There’s consent to have sex, and there’s consent for violence during sex, and those are two separate requirements of consent.

In Bauer’s case, his accuser agrees that she consented to sex. She even claims she consented to “light” rough sex and text messages evidence discussions about choking and slapping. Some have interpreted these text messages as indicating that his accuser suggested she liked that type of roughness and was, therefore, fair game for what was to come. However, Bauer’s accuser claims that during the second sexual encounter, Bauer took the violence up several notches and went beyond just choking or slapping her but ended up punching her in the face & genitals & scratching her face while she was unconscious. She claims she never consented to such an escalation of alleged violence. For his part, Bauer has not yet expressly publicly denied inflicting the injuries, all of which are documented in medical reports and photographed. Instead, his attorney has said that his accuser consented to the sexual encounters, which some may read as an admission of sorts. Text messages and call logs document Bauer’s concern after the incidents and attempts to check on his accuser. However, whether Bauer meant to injure or hurt his accuser, which he claims in messages that he did not, are irrelevant to the question of whether he has a valid “consent” defense. Ignorance is never an excuse under the law. Therefore, if he, in fact, did cross the line, the law expects him to know better.

So where does one draw the line when it comes to rough sex, and does “consent” to rough sex, mean a woman or man is subject to anything that occurs? Even accidental death? If someone wants to be asphyxiated for erotic purposes but is choked too hard and killed, should their sexual partner be held liable for their death?

Generally, cases have held that consent is not a defense to serious bodily injury and certainly not death. It’s important to note that sometimes consent if proven, can be a partial defense to homicide to mitigate a charge from intentional murder down to manslaughter. However, the law takes a hardline approach when it comes to consenting to actual harm. So, what does that mean in practice? It means that even if a person consents to being seriously injured, the person inflicting that injury in the bedroom is not off the hook. Now, of course, if their partner doesn’t report them, then they may get away with it. But consent is simply never a defense to seriously injuring someone. Serious injury is defined differently depending on the state where you live, but generally, it means disfigurement, loss or impairment of function, substantial risk of death, or in some cases, broken bones or fractures. Often it can be an arbitrary question for a jury, and therefore, common sense may dictate when serious injury has occurred.

In Bauer’s case, his accuser claims she was vomiting, not well for days, and supporting documents mention possible concussion and/or fracture, but test results were not publicly released. Pictures show black eyes, a busted lip, and numerous scratch marks on her face. If, in fact, doctors and a jury find that she was seriously injured, under the law of her state, then Bauer’s consent defense would not be applicable.

Furthermore, the accuser claims she never consented to being punched and/or injured to the extent that her medical reports document. So, even if she was not “seriously injured,” Bauer would need to prove that she consented to the actions that caused her injuries and not just “rough sex” in general. If text messages show she was up for “choking” and “slapping,” Bauer would need to make the case that he did not go beyond that, and the documented injuries could belie such a claim. If Bauer claimed she did consent to being punched, it would still be hard to prove since it would be a “he said, she said,” and his accuser’s actions of going to the hospital & filing a police report could call such a claim into question.

To further complicate Bauer’s predicament, the accuser claims she was unconscious during the alleged violence. By default, a person cannot give consent while unconscious. Documents that support her temporary restraining order against Bauer indicate the two allegedly came up with a “safe word” to use and, of course, his accuser would not be able to use a safe word if she was unconscious, which could also take his actions outside of the rules of the rough sex game.

As Bauer sits on administrative leave, while a potential police investigation and MLB investigation are pending, the allegations against him & the allegations against Deshaun Watson serve as warnings to men and women alike that it’s important for sexual partners to have open communication and be on the same page when it comes to intimacy, violent or not. Generally speaking, if you plan to turn your partner into a punching bag, remember that whether they consent or not, you’d likely be committing an inexcusable crime. You generally cannot get away with assaulting and battering another person to the point of injury unless, of course, you’re an athlete in the midst of playing a violent sport. Then, it may be okay, depending on the circumstances.

After this article was published, a public relations firm reached out to Fox Sports Radio asking that “several urgent corrections” be made to the article and including statements from Trevor Bauer’s agents. Those statements are published in full below. The author stands by the article and has opted not to include Bauer’s PR person’s requested“corrections” in the article. Instead, the author has opted to make a few minor changes to include more specificity.

"Bauer should always be presumed innocent until proven guilty in a court of law and he only faces allegations and has not been charged with any crime

Statement from Jon Fetterolf, Trevor Bauer’s agent (released June 29)

Mr. Bauer had a brief and wholly consensual sexual relationship initiated by [the woman] beginning in April 2021. We have messages that show [the woman] repeatedly asking for “rough” sexual encounters involving requests to be “choked out” and slapped in the face. In both of their encounters, [the woman] drove from San Diego to Mr. Bauer’s residence in Pasadena, Calif. where she went on to dictate what she wanted from him sexually, and he did what was asked. Following each of her only two meetings with Mr. Bauer, [the woman] spent the night and left without incident, continuing to message Mr. Bauer with friendly and flirtatious banter. In the days following their second and final encounter, [the woman] shared photos of herself and indicated that she had sought medical care for a concussion. Mr. Bauer responded with concern and confusion, and [the woman] was neither angry nor accusatory. Mr. Bauer and [the woman] have not corresponded in over a month and have not seen each other in over six weeks. Her basis for filing a protection order is nonexistent, fraudulent, and deliberately omits key facts, information, and her own relevant communications. Any allegations that the pair’s encounters were not 100% consensual are baseless, defamatory, and will be refuted to the fullest extent of the law.

Statement from Jon Fetterolf and Rachel Luba, Trevor Bauer’s co-agents (released July 2)

We reaffirm our original statement and refute [the woman’s] allegations in the strongest possible terms. Mr. Bauer will not appeal MLB’s decision to place him on administrative leave at this time in an effort to minimize any distraction to the Dodgers organization and to his teammates. Of note, administrative leave is neither a disciplinary action nor does it in any way reflect a finding in the league’s investigation.

I talked about this case on the Dan Patrick Show with Jason McIntyre & LaVar Arrington filling in. Listen below: