The Long, Complicated History Of Trevor Bauer’s “Rough Sex” Defense
12:36 PM EDT on August 13, 2021
When 27-year-old baseball fan Kelly (a pseudonym used here to protect her identity) tagged star Los Angeles Dodgers pitcher Trevor Bauer in an Instagram story she posted during the April 18 Dodgers-Padres game, she didn’t expect him to contact her, she later told a court. But after a few hours, she got a direct message from him. Soon, they were flirting back and forth. “Give me all the spice,” he wrote. “Um duh you are talking to the queen of physical touch. Such a spicy love language,” she shot back, according to her request for a restraining order.
Three days later, Kelly was making the more than 100-mile drive from her home in San Diego to Bauer’s Los Angeles house, arriving around 9:30 p.m. After hours of chatting in his living room about everything from her sobriety to baseball, at 2:00 a.m. he asked if she wanted to go upstairs and sleep in his bed. She said yes. They kissed. They began having “consensual sex,” she wrote in her request for a restraining order, filed with Los Angeles Superior court. He pulled her hair and became “slightly aggressive,” she said in the document.
“What do you like?” he asked her.
She said it was okay “to be a little rough.” She asked Bauer what he liked.
“A little rougher than you,” he said, according to the document.
Kelly and Bauer had two sexual encounters, she would later tell the court. During the first, in April, Kelly said that Bauer wrapped her hair around her neck and choked her until she was unconscious. She said that when she woke up, Bauer was penetrating her anus, to which she had not consented.
Their second encounter happened on May 15, after which Kelly said in the court document that she was left with two black eyes, a swollen jaw and cheekbones, 10 scratches on her face, gums bruised black, a bump on the side of her head, a split open upper lip, and bruises on her vagina and butt. Kelly drove to the emergency room and received CT scans, which were clear, according to the after-visit summary she included in her restraining order request. But doctors diagnosed her with acute head injury and assault by manual strangulation, and they found that she had black eyes and ecchymoses (a condition similar to bruising) on her mons pubis, labia, and buttocks, according to medical reports submitted to the court. A few days later, she told her story to Pasadena police, which said it has been investigating the case but hasn’t charged Bauer with any crime. The Pasadena Police Department declined to comment for this article.
Kelly filed her request for a restraining order on June 29. Bauer, who has been on administrative leave from MLB since July 2, has not spoken publicly about the allegations. His agent, Jon Fetterolf, issued a public statement on behalf of his client. It read in part:
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.
What was deployed in that section of Fetterolf’s statement is what is commonly referred to as the “rough sex defense,” which has been used throughout history, with varying degrees of success, by people who have been accused of sexual assault. It remains to be seen if the rough sex defense will work for Bauer, but its arrival has put his case within the context of an ongoing conversation between sex workers, courts, researchers, lawyers, academics, and advocates. The question this conversation has attempted to answer is, “Just what is the line between rough sex and sexual assault?” It’s an urgent question that affects not just the Bauer case, but BDSM practitioners and even the soccer moms down the street who dabble in Christian Grey-inspired fantasies.
BDSM first caught the attention of the U.S. court system more than a half century ago, in 1967, when San Francisco ophthalmologist Marvin Samuels met celebrated underground filmmaker Kenneth Anger, and told him about the S&M films he’d been shooting. Anger, who was working closely with famous sexologist Alfred Kinsey, told Samuels that Kinsey would be interested in seeing the films, which featured Samuels whipping another man. Anger developed the film at a Palo Alto Kodak store, whose clerk alerted authorities. Samuels was arrested, and eventually convicted of assault even though the man in the film that he was accused of assaulting never testified, police never even tried to find him, and the injuries to the man were never identified. (Samuels ended up being fined $3,000 and sentenced to 10 years of probation). Although Samuels claimed the man had provided consent, the court said that was irrelevant.
“Consent of the victim is not generally a defense to assault or battery, except in a situation involving ordinary physical contact or blows incident to sports such as football, boxing or wrestling,” the judge wrote in his decision, making one of the earliest legal distinctions between BDSM and sports, which continues to be cited to this day. (It's worth remembering that during this time, homosexuality was still considered a crime and a mental disorder.)
Thirteen years later, in 1980, a gay man who was in a master-slave relationship was convicted of assault of his partner after beating him with a bat and fracturing his kneecap (Commonwealth v. Kenneth A. Appleby). “The Supreme Judicial Court of Massachusetts also held that sadomasochistic activity is not a defense against charges of assault and battery based on privacy and consent,” wrote legal scholar Andrea E. White.
In 1985, the sports metaphor came up again when the Iowa Court of Appeals affirmed the conviction of a man for assault when he tied an employee up, whipped her with a belt, gagged her, and had anal sex against her will. He had claimed that her interest in rough sex should have overturned the case. “Sadomasochistic activity [is not] a ‘sport, social, or other activity,’” the court declared, and therefore bodily injury was not something the victim could consent to.
The following year, courts began to shift attitudes toward consent and BDSM. It all started with the Bulloch case. In 1986, Dennis Bulloch, a phone company executive, responded to a singles ad in the newspaper placed by Julie Miller. They got married soon after meeting, and a few months after the wedding, Miller was dead. “Emergency personnel responded to a fire at the Bullochs’ home in Ballwin. Amid the charred debris was the body of Julie, duct-taped to a rocking chair, her face burned beyond recognition,” wrote Traci Angel in St. Louis Magazine. Bulloch was initially charged with first-degree murder, punishable by the death sentence. He claimed he had been choking Miller during a bondage session, which got out of hand, killing her. His charge was knocked down to manslaughter. He spent seven years in prison before he was released.
It was a case a few months later that has now become synonymous with the rough sex defense. The case involved Robert Chambers and Jennifer Levin, two wealthy, privileged college students who were casually dating. Chambers and Levin had gotten into an argument at an Upper East Side bar in New York City. After leaving the pub, they walked through Central Park. Her strangled, bruised body was found about two hours later by a bicyclist. Chambers was apprehended. He initially denied his involvement in her death, but later claimed that her death occurred during an episode of rough sex. His charge was reduced from homicide to manslaughter, despite the fact that there was no evidence that Levin and Chambers were engaged in rough sex at the time of her death. Chambers served 15 years in prison.
Chambers was dubbed the “Preppy Killer,” and his lawyer’s successful use of a rough sex defense was seemingly copied a few months later when 19-year-old Joseph Porto strangled his 17-year-old girlfriend Kathleen Holland to death. Porto initially explained to the prosecution’s psychologist that “he had exploded in jealous anger when Holland told him she wanted to date other boys,” Time magazine’s Richard Lacayo wrote. But when he testified, Porto changed his story. He had strangled her to death accidentally during a session of erotic asphyxiation, he claimed. His charge was reduced from second-degree murder to criminally negligent homicide, and he spent two and a half years in prison.
At least at first glance of the legal history, the rough sex defense seemed to not work when gay men were on trial, but became effective when straight men took it up to claim their own innocence, which surely was influenced by a broader culture that viewed gay men as deviants. I asked Robert Ridinger, the author of Negotiating Limits: The Legal Status of SM in the United States, about this. He told me, “I would say it's partly true, but only because you would have to answer that question by looking at not who was engaging in this behavior, but who got caught? The people who wound up in these cases are only the tip of a very much larger iceberg, which is probably of many genders, many orientations."
In a 1989 law review article analyzing these three cases, the lawyer George Buzash argued, “the ‘rough sex’ defense in murder cases has displayed the potential to become both the updated 1990s' version of the ‘she asked for it’ defense and a formidable obstacle to prosecutors trying to secure a murder conviction in a homicide involving a male offender and a female victim.” Buzash argued that it would be difficult for anyone to prove intent to kill if claims about the victim being into rough sex were made. “Under existing statutory law, a defendant employing the ‘rough sex’ defense can be, at most, convicted of involuntary manslaughter,” he wrote.
Buzash’s prediction seems to have been somewhat correct.
In 1991, a Connecticut man named Lance Valentine strangled his girlfriend to death, claimed it was during rough sex, and was sentenced to a mere five years in prison for second-degree manslaughter. In 1994, Gerald Ardito strangled his ex-girlfriend to death, used the rough sex defense, and was charged with manslaughter instead of murder. Two months before her death, a witness had seen Ardito with his hands around his ex-girlfriend’s throat, and another chased Ardito away with a baseball bat.
“Try to imagine a woman claiming ‘rough sex’ as a defense for killing a former intimate, let alone succeeding in it,” wrote law professor Caroline Forell in her criticism of Ardito’s defense.
“There are basically almost no women worldwide who claim that they've killed a man during consensual sex,” says Fiona Mackenzie, who founded We Can’t Consent to This, a British advocacy group that fights against rough sex defenses in England. Since heterosexual men and women engage in rough sex together, she said, “you would expect women and men are being killed and prosecuted in similar numbers.” But that’s not what happens in reality.
Ridinger, who also is a professor at Northern Illinios University, says that the cases he studied where the defendants claimed rough sex involved defendants who “knew they had done something that was beyond the limits. And they were trying to find a way to keep themselves from going to jail.”
Ironically, even as murderers significantly reduced their prison time by claiming BDSM caused their victim’s death, some practitioners of BDSM were being convicted of assault when they were engaging in consensual practices. “The problem with those old appellate cases is they all say consent is not a defense to assault. So BDSM was kind of judged as a moral thing. So if somebody even dripped hot wax on someone, it doesn't matter if they consented, according to case law,” says Susan Wright, founder of National Center for Sexual Freedom and a BDSM practitioner. Wright is referring to a 2001 case where a man was convicted of assault for dripping candle wax and using nipple clamps. Even though the “victim” didn’t have any wounds, the court said using the wax was assault because it was “hot and it stung” and the nipple clamps were “tight and cutting.”
Then, in the early 2000s, police departments had a change of heart, which could have been spurred on by the Diagnostic and Statistical Manual of Mental Disorders, the bible for psychiatrists that is used to determine whether insurance will cover treatments, removing BDSM as a form of mental illness. “Police departments realized people were kinky, and they got tired of arresting people for it,” says Wright. “They kind of swung too far the other way, and stopped prosecuting any BDSM cases, which is why we have kind of a dearth for the past, you know, 20-plus years, in terms of helping to set case law.”
More recently, some BDSM cases have been prosecuted. In 2004, a Nebraska man was convicted of assault in a master-slave relationship after the male slave decided he no longer wanted to be a slave and the master continued against his will. “The Supreme Court of Nebraska ultimately held that consent is not a defense to physical injury in a BDSM relationship,” wrote the scholar White.
Yet courts have been inconsistent. In a 2009 BDSM case (State v. Gaspar), the Supreme Court of Rhode Island declared, "There is only one question for the jury's determination: did the events of the night in question constitute a mutually consensual sexual encounter between two adults or a brutal sexual assault?"
In the past few years, the rough sex defense has continued to be used, but it hasn’t been that successful. In 2015, a Florida man who murdered a woman and ripped out her intestines tried to claim that her death was the result of rough sex, but the man was sentenced to life in prison. In 2016, a New Hampshire man’s attempt to blame rough sex for his murder of a 19-year-old college student failed. Three years later, in 2018, a Texas man strangled his fiancee’s sister to death, and claimed it was during rough sex, but he ended up being convicted of murder.
Although murder cases where rough sex is used as a defense do go to trial, most cases where abuse is being disguised as BDSM rarely go that far, according Annie Seifullah, an associate at C.A. Goldberg, a victim rights law firm.
Forty percent of the American public surveyed in a 2017 study by Dr. Debby Herbenick of the Kinsey Institute indicated that they found rough sex to be “very appealing” or “somewhat appealing.” But as Wright argues, rough sex is not something that should be entered into without a great deal of thought and communication. “Millions of people out there who see the fantasy, see the porn, they're not getting the education,” says Wright. She points out that less than four percent of people in the Herbenick survey had ever “taken a class or workshop to learn about sex.”
Although the appeal of rough sex is wide, definitions of rough sex certainly aren’t universal. “Someone might say they like rough sex, but they’re thinking, ‘Oh, yeah, push me down on the bed.’ While the other person is thinking, ‘Punch me in the face,’” Wright says. “It’s not enough to just say, ‘Are you into rough sex? Are you into BDSM?’ You must actually discuss the extent of the force and the type of force and restraint that will be used. BDSM is really very much about consent in terms of before, during, and after … The mantra [is] safe, sane, and consensual.”
Will rough sex be a plausible defense for Bauer if the criminal investigation turns into a case, or enough to lift the restraining order against him? “The difference between what’s legitimately ‘rough sex’ and sexual assault is consent,” Seifullah says. But Wright points out that more than 20 states don't have a definition of consent. California, however, does. The state defines consent as: “Positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.”
Because consent is the legal question at issue, it makes sense that Bauer’s agent mentioned consent in his initial statement. “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,” Fetterolf wrote in the June 29 statement. “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.”
The most recent statement, released July 8 from Fetterolf and Bauer’s other agent, Rachel Luba, states, “We continue to refute [the woman's] allegations in the strongest possible terms and Mr. Bauer vehemently denies her account of their two meetings. Again, administrative leave is neither a disciplinary action nor does it in any way reflect a finding in the league's investigation.”
Because what’s at issue is consent, Bauer’s defenders are focusing on Kelly’s text messages to Bauer—in which she talked about being turned on by being slapped and choked out—to argue that they demonstrate permission. But those messages shouldn’t really serve as consent, according to Mackenzie. “Just because you said something in a text message doesn't mean that in reality you should be subjected to a terrible assault,” she says.
Similarly, Wright says, "it doesn't matter if somebody says they want rough sex or they want to be punched in the face. There are things you have to do in order to make sure you're being safe, and you understand the risks involved … There is communication that has to happen beforehand. And it's not just the sharing of the fantasies in text back and forth … you also have to have a way to stop at any time.”
Even if you do consent to certain acts of violence, the perpetrator could still be liable. “If I hit your head against the wall, and you have a concussion, brain bleed [even if you consented], that's highly problematic in terms of criminal liability,” says Dr. Jill Weinberg, an assistant professor of sociology at Tufts and the author of Consensual Violence: Sex, Sports, and the Politics of Injury. Although if a concussion happens during an MMA fight, for example, the fighter who caused it wouldn’t be liable.
Yet the rough sex defense persists, even if it is not always successful. Mackenzie says that a rough sex defense is “horribly clever defense to criminal charges” because it transforms “a woman from the perfect victim to a woman who deserves what she was asking for,” while the perpetrator becomes “the poor man who was only doing what she asked.”
Similarly, Seifullah calls the rough sex defense a new version of the old “you were asking for it” defense that so many rape victims have had to contend with. “Some of the first questions that get asked of the victim by law enforcement will be, ‘Were you drinking? What were you wearing?’” she says. “When the perpetrator says, ’She said I could choke her. She said I could slap her,’ then questions about the victim's sexual history get brought up, oftentimes in an attempt to blame the victim for the violence that they suffered.”
So what is a consensual BDSM practitioner to do? Are we going to have to live in a world with sex contracts and videotaped consent?
Not necessarily. Although those in the BDSM community who don’t practice consent safely in an explicit manner are deemed outcasts, according to Dr. Weinberg, most BDSM practitioners will probably not find themselves in Bauer’s situation.
“We don't see black eyes, because it's too easy to damage the orbit of the eye, to crack the cheekbone. To see somebody with two black eyes and a busted lip, that looks like domestic violence, that's battery. That doesn't look like BDSM,” says Wright. “When we educate law enforcement, we teach them the difference between [BDSM and assault], and facial bruising is one of the big things that's not normally seen in BDSM, [as well as] defensive marks on the arms, scratches on the face of the neck … Punching somebody in the face is so risky, because there's so many things like the sinuses, the nerves.”
Choking, too, like what Kelly reported, is rarely done during staged BDSM scenes, because it is very dangerous. “If you choke somebody with neck constriction, there is a much higher risk of causing coma, death, stroke,” says Wright. Despite how dangerous it is, choking is common during sex. A 2020 study conducted by Dr. Debby Herbenick found that 21.4 percent of American women and 12 percent of men say they’ve been choked during sex. “But choking during sex was much more common among 18 to 29 year olds—almost 40 percent of whom had choked or been choked—leading us to believe that choking has really changed in the U.S., over probably the last 10-20 years,” Dr. Herbenick told Dan Savage.
Mackenzie is appalled by the prevalence of strangling during sex. “I'm so angry that literally the most serious assault possible has been sold to women as a sex thing,” she says. “Serial killers would strangle women because you can see the light going out of a woman’s eyes. It is such an intimate way to harm, to kill.”
Seifullah, too, has rarely seen injuries like this in BDSM cases. “I look at cases like this with a huge amount of skepticism towards his defense, because it's just so unlikely that a person inside of the BDSM community … [will] find themselves seriously injured inside of a consensual situation,” she says. “In my experience, I can't even think of a specific time I can point to where a person was engaged in a consensual S&M activity and was really violently injured.”
Should the rough sex defense be banned outright? That’s what Mackenzie thought when she founded the We Can’t Consent to This campaign in Britain in December 2020. By April 2021, she had gotten the laws changed. Rough sex can no longer be used as a defense in Britain. She hopes to see a similar change in the U.S. “To be honest, the U.S. has almost a bigger problem than us in the U.K., where at least the cases we had there was genuinely an outcry against them,” Mackenzie said.
But things are starting to change in the U.S., for the first time in decades. “The last Model Penal code on sexual assault was created in 1962,” says Wright, referring to the codes written by lawyers, law professors, and others to help state legislators forge laws that are reasonable and well thought out. Wright helped craft the new code on sexual assault which was just approved in June 2021.
“It involves explicit prior permission for use of force or restraint. And it echoes the BDSM communities’ affirmative consent standards,” Wright says.
The code Wright helped draft, 213.10 Affirmative Defense of Explicit Prior Permission, says that a BDSM practitioner accused of sexual assault can defend their behavior as consensual if they received verbal or written directions to “ignore the other party's expressions of unwillingness or other absence of consent,” and if they have specified “the specific forms and extent of force, restraint, or threats that are permitted,” and stipulated “the specific words or gestures that will withdraw the permission.”
Many caveats are mentioned to ensure that this defense isn’t used to as a shield for sexual assault, as the rough sex defense has been. The explicit prior permission defense can’t be used if a sex act occurs “after the explicit permission is withdrawn,” when the other person is “unconscious, asleep, or otherwise unable to withdraw that permission,” or if the person “recklessly disregards the risk of injury.” It also can’t be used with a person under the age of 18, or a person who is “intoxicated or trafficked.”
In the code’s commentary, the authors even mention the rough sex defense. When a person “knowingly or recklessly uses physical force, restraint, or extortionate threats to cause another person to submit to or perform sexual acts,” they “cannot avoid liability simply by claiming that the actor thought the other party might find ‘rough sex’ appealing.”
Although California hasn’t adopted this code, the legal framework has been introduced in sexual assault and domestic violence cases in two different states, Wright says. She thinks it should be used in the Bauer case. “This is exactly the sort of case that it was meant to be a legal framework for.”
Will Bauer continue his rough sex defense in court? And if he is found liable, will he, like the “Preppy Killer” and some of the other straight white men before him, be granted more leniency, because the violence occurred during rough sex? It’s hard to know. Our attitudes have shifted since the 1980s and 1990s. It’s the era after MeToo, sexual consent guidelines are routinely taught to college freshmen, BDSM is a common theme in pop culture, and victim blaming is no longer as acceptable as it once was. And yet when men are accused of assaulting their partners, their defense is, still, “She asked for it.”
Correction (Aug. 14, 10:24 p.m. ET): A previous version of this article erroneously said that two states had adopt the new Model Penal Code. The legal framework has been introduced in sexual assault and domestic violence cases in two different states.