Editor’s note: This story contains graphic accounts of alleged domestic violence and sexual assault. If you or someone you know is a survivor of sexual assault or domestic violence, contact the National Sexual Assault Hotline at 1-800-656-4673 or the Domestic Violence Hotline at 1-800-799-7233.
She said: Earlier this year, she met him at his home, agreed to have sex and walked out with various injuries, including two black eyes.
He said: Whatever he did, she requested.
This is the heart of the case against Dodgers star Trevor Bauer—a story that blew up this summer and could have ramifications beyond Bauer, because it is not like most sexual assault accounts. Both sides say they met for consensual sex on two occasions. The woman acknowledged that at one point she texted Bauer, “Give me all the pain.” Jon Fetterolf, an attorney and agent for Bauer, said in a statement he released over the summer: “She went on to dictate what she wanted from him sexually and he did what was asked.” Text messages support some, though not all, of Bauer’s claims. His defense is that this was not sexual assault because she had agency to stop it, and either didn’t use it or used it to voice her approval.
Where the case goes from here is to be determined. Prison time? A civil case? A suspension? A return to the field next spring? As prosecutors weigh whether to press charges against the 2020 National League Cy Young Award winner, everybody involved is stuck in a foggy corner of the legal system. Courts have long struggled with how to deal with BDSM (bondage, sadism, domination and masochism) encounters. This could be the highest-profile case yet. It is not just an argument over what happened, but what should be allowed to happen.
Bauer has lost his season (he is on administrative leave for the rest of 2021) and much of his reputation. But he won the only legal battle to this point. The woman’s petition for a permanent restraining order was denied last month. In making that ruling, California Superior Court Judge Dianna Gould-Saltman gave multiple reasons. One was that, since they met only twice, “the dating relationship was at most tenuous,” and Bauer had not pursued the woman outside of mutually agreed-upon meetings. But another reason was that the woman in the case requested rough sex.
As Gould-Saltman wrote in her ruling: “The primary question for this court is, to what did petitioner consent?”
The judge ruled that Bauer did not violate her consent, and that she “set limits without fully considering all the consequences.” But that primary question leads to a host of others—about the definition of consent, what it covers and what it doesn’t. This is a strange enough case that former U.S. Attorney Barbara McQuade speculated to Sports Illustrated that perhaps a prosecutor could pursue simple assault charges against Bauer instead of sexual assault. The idea, she said, would be that she agreed to sex but not to the violent acts.
Bauer’s attorneys argue that, while some might see his actions as criminal acts, he was actually conducting himself properly within the context of a BDSM encounter. Interviews with legal and BDSM experts tell a very different story: His actions were not at all appropriate for a BDSM experience. But that doesn’t mean he will be found guilty.
If no means no, and yes means yes, what does “Give me all the pain” mean?
“When someone says they're interested in rough sex, that should be the beginning of the conversation,” says University of Memphis professor Stephen K. Stein, author of the book Sadomasochism and the BDSM Community in the United States: Kinky People Unite. “That should never be the end of the conversation.”
Professor Ummni Khan of Carleton University, who specializes in socio-legal construction of deviant sexuality, says, “ ‘Give me all the pain’ is way too broad! What could that possibly mean? Does that include burning? Does that include, you know, cutting? What does that mean? What does that include?”
Traditional views of consent, Khan says, are “like on/off. Consent becomes a binary. It’s there [or] it’s not there. So she’s treated as someone who gave it. But when I read the facts, it’s kind of very messy.” There is also surely more information that has not come out but could in a trial if there is one.
Bauer’s legal team released a statement to SI that read, in part: “To be clear, after the woman requested rough sex, Mr. Bauer proactively brought up, discussed, and mutually agreed to rules and boundaries with the woman prior to any sexual activity.” It also dismissed her “wildly imaginative account” and pointed to Gould-Saltman’s comment that the woman’s petition was “materially misleading.”
Even if one takes Bauer at his word about what they discussed, there are still significant questions. Why did she end up in a hospital? Does Bauer understand what “mutually agreed to rules and boundaries” means to BDSM experts?
For example: Fetterolf, Bauer’s agent, says the woman “repeatedly [asked] for ‘rough’ sexual encounters involving requests to be ‘choked out’ and slapped in the face.” But if that’s as far as the discussion went, experts say that is still too broad. How hard? How often?
In her ruling, Gould-Saltman wrote that Bauer “invited petitioner to talk to him when she seemed upset. … She had multiple opportunities to set boundaries.” She also wrote, “Petitioner testified that when she set boundaries, [Bauer] respected them.”
This sounds straightforward. But it misinterprets how BDSM encounters are supposed to go.
In a top-bottom situation—with the top being the dominant partner and the bottom being the submissive one—simply offering a partner opportunities to set boundaries is not enough. The boundaries must be clearly defined.
“That’s like a foundation of the kink educational community, all of these educational groups and parties that we have, is that you consent to specific things,” says Susan Wright of the National Coalition for Sexual Freedom, an advocacy group for the alternative sex community. “And if you don't consent to something specifically, you haven’t consented to it.”
That means that when his partner texted Bauer, “Give me all the pain,” it was not a blanket consent. It was essentially meaningless, because it was not precise.
Also: She sent that and all other public texts after her first encounter with Bauer. In her request for a restraining order, she says she met Bauer through Instagram direct messages, agreed to have sex at the end of the night and said it was O.K. to be “a little rough” only after he started pulling her hair. She said when he asked whether she had ever been choked during sex, she said yes, but she did not expect him to stick his fingers down her throat.
She said when she regained consciousness, she realized he was penetrating her anally. When she asked him to stop, he did.
Gould-Saltman wrote that Bauer “couldn’t know the boundaries which petitioner didn’t express to him.” But that misportrays Bauer’s role. His job was not just to know what he couldn’t do. It was to get explicit prior approval for every single act she wanted him to perform.
Experts say that the conversation the woman described is not supposed to happen in the heat of the moment. There is a reason that most BDSM encounters proceed slowly. Stein refers to “their mantra of ‘safe, sane and consensual.’ ” Bauer says he asked specific enough questions, but she says he did not. Based on her own words, she did not set specific enough parameters. Khan says, “In the BDSM world, you would not want to be playing with … well, either of them, frankly.”
As Fetterolf noted, before their second meeting, Bauer’s partner asked to be “choked out”—asphyxiated until she was unconscious. There are certainly people who are into that, but Stein says “breath play” is “a fairly contentious topic in the community, for obvious reasons. And that’s part of what they argue about, is how safe it is.” (The woman's legal team declined to discuss whether she had experience with consensual BDSM encounters.)
To experts, their encounters went wrong before they went wrong to the rest of the world. And then they got dangerous.
There is a line between pain and agony. A sexual encounter that ends with somebody in the hospital is considered on the wrong side of it. Notes from the woman’s medical visit detail “significant head and facial trauma” from Bauer.
“Many enjoy experiencing pain in many different ways in the BDSM world,” Khan says. “But the black eyes, it’s not common.”
Wright said she would not comment specifically on the Bauer case. But she did say, “If you look at a [fetish] website like FetLife, and you look at kinky photos, you don’t see a lot of black eyes, busted lips. Because it’s very risky. You can put somebody’s eye out. You can dislocate somebody’s jaw. So we play with the softer parts of the body—the buttocks, the breasts, the back.”
When NCSF advises police departments on how to differentiate safe, consensual BDSM activity from assault, one tip is to look for a pattern to the marks. A repetitive pattern on a soft area of the body indicates consensual acts. Photos like the ones in this case are quite different.
In her petition for a restraining order, the woman says she did not consent to being punched in the face, as she says Bauer did during their second encounter. But in denying the request, Gould-Saltman wrote that, “Under most circumstances, merely seeing photographs such as those would serve as per se condemnation of the perpetrator of such injuries. But petitioner had and has the right to engage in any kind of sex as a consenting adult that she wants to with another consenting adult.”
That sounds reasonable from a legal perspective. But surely there must be limits to consent. Start with the most extreme hypothetical: A partner asks to be killed during sex. Obviously, that does not mean it is O.K. to murder that person. But what is O.K.?
The legal system has an uneven history of finding that line. In 2000, Attleboro, Mass., police raided a BDSM party and arrested people who were, by all accounts, performing consensual acts. In the late 1990s, a New York man named Oliver Jovanovic went to prison for 20 months for kidnapping and sexually abusing a partner; that conviction was overturned upon appeal because the judge had erroneously blocked jurors from viewing emails that indicated his partner was into BDSM and consented to the acts.
Many jurisdictions still operate under laws that are antiquated (and ban acts that are now commonly accepted as legal), vague or so broad that they are essentially unenforceable. Wright says, “There’s over 20 states that haven’t even defined what consent is.”
The law does provide exceptions for aggressive physical acts in certain nonsexual situations. The violence we see in every football game or boxing match would not be legal in most social settings, but the rules of engagement allow it. Occasionally a hockey player will face criminal charges for being more violent than the sport permits, but the worst punishment for hitting somebody above the waist with a stick, or starting a fight, is usually just a game misconduct. But violence in the context of consensual sex does not get such wide legal leeway. Society has essentially said: You can get smacked if you are trying to win a game, but not if you find it sexually fulfilling.
This adds another layer of difficulty to the already challenging task of pursuing and gaining a sexual assault conviction. It is commonly accepted in the legal community that convictions for sexual assault are among the hardest to win.
If Bauer is charged, he would have to prove that he acted reasonably under the circumstances; that is: Given what his partner requested, did he do what a reasonable person in that situation would have done? If Bauer penetrated her after she was unconscious, then he clearly violated both community standards and the law.
Even the most liberal interpreter of BDSM standards would agree: Sex should never go past the point of somebody being unconscious. Stein says: “Once you’re unconscious, there’s no consent.” Khan, who lives in Canada, says in her country, it is impossible to consent to anything while unconscious unless it is a medical procedure: “You could [have] a written contract with witnesses, it could be video-ed, it doesn’t matter,” she says. “You cannot consent, in Canada, to that.”
This encounter took place in California, and the law appears just as clear there. The penal code offers multiple definitions of rape, including this:
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, and this is known to the accused.
A person is considered “unconscious of the nature of the act” if they are “unconscious or asleep” and/or “was not aware, knowing, perceiving, or cognizant that the act occurred.” This could apply to somebody who passes out drunk at a party, but it would also apply here. There is no exception for consent before being unconscious.
There is no gray area there, for good reasons. If top-bottom play is about a top satisfying the bottom’s wishes, how can that happen when the bottom is unconscious? (As Khan asks, “Are you really even experiencing pain if you were unconscious for it?”) Also—crucially—the entire dynamic of a top-bottom relationship disappears when the bottom is unconscious. An unconscious person has no way of objecting or saying they have changed their mind. Essential to any BDSM encounter is a mutual understanding that either party—but especially the bottom—can get off at any exit.
“The top should be checking in, like, ‘Is this still O.K.?’ ” Khan says. “People think it’s harder to be the bottom—you’re the one who’s getting all the pain. But the truth is, it’s actually harder to be the top because of the responsibility that you have, taking care of the bottom and taking care of their emotional needs and making sure that they’re O.K.”
This summer, the American Law Institute updated the sexual assault provisions in the Model Penal Code, which was created in 1962. The new code states, “As a general matter, states exhibit a patchwork of penal philosophies.” ALI’s goal is to provide sensible guidelines across the country.
Section 213.10 of the new model code covers “explicit prior permission” as a defense. It requires the partner to identify “specific forms and extent of force, restraint or threats that are permitted,” along with “specific words or gestures that will withdraw permission.” Note the word specific there twice.
And tellingly, the new code says the accused should not be able to use prior permission as a defense if the act occurs “at a time when the other party will be unconscious, asleep, or otherwise unable to withdraw that permission.”