Legal experts discuss whether Trevor Bauer will face charges

Dodgers starter Trevor Bauer throws a pitch.

July 1, 2021 8:20 PM PT

On May 18, the woman accusing Dodgers pitcher Trevor Bauer of sexual assault said she was interviewed by two detectives from the Pasadena Police Department. On May 21, she said she drove from her home in San Diego to Pasadena, again to meet with police.

On Tuesday, close to six weeks later, in a court declaration filed to support her request for a temporary restraining order, she wrote: “I am deeply concerned that no arrest has been made or charges filed.”

On Thursday, Lt. Bill Grisafe of the Pasadena Police Department said Bauer remains under investigation for felony assault.

The Times asked local attorneys to share what may happen from here. They are not involved in the case and are providing general analysis based on their view of public records.

Does the six-week lag mean Bauer is unlikely to be arrested or charged?

Not necessarily, said Los Angeles criminal defense attorney James Epstein.

“I’ve had cases where it was quite a bit longer,” Epstein said. “Just because he has not been arrested at this point is not a clear indication he is not going to be.”

Josh Ritter, a Los Angeles attorney and former prosecutor in the Los Angeles County district attorney’s office, said the lag could reflect concern about whether the case against Bauer would be a strong one, or additional time necessary to prepare a high-profile case that would be aggressively fought in court.

“It’s more interesting that there was no arrest made,” said Lou Shapiro, a Los Angeles criminal defense attorney. “Typically, if someone is a victim of domestic violence and they report it, police here are very quick to make arrests. After they make an arrest, they bring the police report to the district attorney’s office, and they have a month or so to decide whether or not to actually file criminal charges. But the arrest is almost automatic.”

The woman has a temporary restraining order for now. What happens next?

That order was granted based on the documents the woman filed. At a July 23 hearing in Los Angeles Superior Court, Bauer and his attorneys get their say.

“His team is going to have a chance to respond to the accusations formally in court,” said Los Angeles criminal defense attorney Dmitry Gorin, “saying, ‘Hey, we should get rid of this restraining order because there’s insufficient proof here.’”

In addition to requesting that the court keep the order in place, the woman also has asked that Bauer be ordered to participate in what the court calls its “Batterer Intervention Program,” which would require him to attend weekly counseling and education sessions for one year. If he were to do so, he could then argue that a restraining order should be lifted.

If Bauer were to be charged with sexual assault, what would be the primary issue at trial?

“There’s really only two defenses in every single case,” said Neama Rahmani, president of West Coast Trial Lawyers. “The first is that it wasn’t me. The second is that it was consensual. We know that it was Bauer and this young woman. So the question of consent is the only question in this case.”

Bauer’s agent said the two sexual encounters were rough but “100% consensual.” The woman wrote: “I agreed to have consensual sex … I did not agree to be sexually assaulted.” How does that conflict impact a potential legal case?

“The line isn’t so clear,” Ritter said. “You can consent to things that would otherwise be criminal. People do partake in fully consensual, very rough sex that, had the person not consented to it, could otherwise be considered assault and battery. Choking, smacking and strangling could be at least misdemeanor crimes, but you can consent to all of that.”

The standard for conviction would be proof beyond a reasonable doubt. Rahmani said prosecution could be difficult given the text messages Bauer’s camp has released showing the woman encouraging rough sex, and the fact that she returned for a second sexual encounter after she said Bauer had left her unconscious during the first one. The Times has not independently authenticated text messages included in the restraining order request or provided by Bauer’s attorney.

In her request for the restraining order, the woman submitted medical records that stated she was diagnosed with “assault by manual strangulation” and “acute head injury,” with multiple pictures of her bruises.

“As heinous and disturbing as those pictures are, they’re trying to say this was a consensual sexual encounter and she came back for more,” Shapiro said. “So how are you going to prove beyond a reasonable doubt to a jury that she didn’t want any of this?”

Said Chloe Wolman, a Los Angeles family law attorney: “A victim doesn’t have to behave in one certain way. There are a number of ways a victim can respond to that sort of abuse, and any way that doesn’t fit the stereotypical conception of what a victim should do and should look like is often dismissed — not because the domestic violence didn’t happen, but because the police think ‘she has a checkered past’ or ‘she went over to him for sex.’”

During both encounters, the woman went to Bauer’s home for sex, with three weeks in between. In both encounters, she stated she became unconscious, and awoke to find Bauer had initiated sex with her.

“If you were unconscious, there’s no ability to consent,” Wolman said. “If someone is unconscious, your ability to do anything to them, even if they had previously given consent, is over.”

If the district attorney declines to prosecute, does the accuser have any other options?

Yes. In civil court, where jail time is not an option and money is usually the sanction, the standard of conviction is lower: a preponderance of the evidence, rather than proof beyond a reasonable doubt.

“This is the first step in the direction of filing a civil suit against him for infliction of emotional distress and damages, and so forth,” Shapiro said.

“This is being settled through civil court,” Rahmani said. “I’m like 99% sure.”