As expected, Bauer’s attorneys have zeroed in on text messages by the alleged victim where she is sounds like she was more than ok with the alleged encounters. According to testimony presented at the hearing, between the two encounters, the alleged victim messaged Bauer that the choking “was a game-changer” that “I’ve never been more turned on in my life” and “give me the pain.” Based on that admitted piece of evidence, it would be reasonable to assume if you were Mr. Bauer that the alleged victim not only enjoyed what he allegedly did to her but she was also very much open to the idea of engaging in said behavior again in the future. As she stated on the witness stand yesterday she, “was going with the flow. I wanted to tell him what he wanted to hear. I wanted to create a better experience than the first time.” Under California law, “A man/woman may withdraw consent to a sex act even after the initiation of sexual intercourse.” People v. Roundtree (2000) 77 Cal. App. 4th 846, 851. Thus, it begs the question, what if it wasn’t possible for the alleged victim to consent.
Under case law, “Neither a woman’s actual “advance consent” nor a man’s belief in “advance consent” eliminates the wrongfulness of a man’s conduct in knowingly depriving an unconscious woman of her freedom of choice both at the initiation of and during sexual intercourse. A person who commits the prohibited acts necessarily acts with a wrongful intent.” (People v. Dancy (2002) 102 Cal. App. 4th 21, 37 [124 Cal. Rptr. 2d 898]). Put it another way, under the law, a woman cannot consent to any kind of sexual act if during the alleged sexual act she becomes unconscious. That is because for even a mere moment of time, that alleged individual has lost their freedom of choice to decide whether or not that individual wants to continue to engage in this sexual act. It is somewhat similar to a Defendant who chooses to represent himself. Why is that? That is because the Court usually appoints the Defendant’s now-discharged attorney as stand-by counsel. The Court does that because the Defendant can choose at any time to have an attorney represent him because the Defendant has a Constitutional right to be represented by an attorney in just about every kind of criminal case. For example, if the Defendant was convicted by a jury that Defendant still has the right to be represented by an attorney at sentencing because the right to counsel applies throughout the entire trial including sentencing, and appeal. That same Defendant can invoke his/her right to counsel at any time after he/she has affirmatively waived it. The same is said for consent. The alleged victim maintains her right to withdraw consent throughout the sexual act. If that victim is rendered unconscious, she has lost her right to withdraw consent even for a mere moment. Is it applicable to the matter involving Trevor Bauer?
Let’s use a hypothetical rape charge to discuss. As stated previously, Mr. Bauer has not been officially charged with anything.
The image below is the California Criminal Jury Instructions for a Rape of an Unconscious Woman or Spouse.
When prosecuting a case at trial, a prosecutor must be very familiar with the jury instructions because they have the burden of proving each and every element beyond a reasonable doubt. First element, Mr. Bauer had sexual intercourse with the victim. That is uncontested. Second, Trevor Bauer and the woman were not married to each other at the time of the intercourse. Again, uncontested. Third, the woman was unable to resist because she was unconscious of the nature of the act. Again, uncontested. Finally, the defendant knew that the woman was unable to resist because she was unconscious of the nature of the act. This is where the opposition is likely to begin. As stated in a previous post, Mr. Bauer allegedly choked the victim unconscious with her own hair and proceeded to have anal sex with her. How does the prosecution prove that Mr. Bauer knew the victim was unconscious? Potentially in comes the alleged 2020 incident. In the alleged 2020 incident, Mr. Bauer allegedly wrote in a snapchat message, “Like the only reason I’d ever consider seeing you again is to choke you unconscious, punch you in the face shove my fist up your ass, skull fuck you and kick you out naked. And obviously I would never do something that that to anyone. So I can’t even enjoy the one thing I sometimes enjoyed with you.”
Under California Evidence code 1101(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as knowledge that she would become unconscious by Mr. Bauer choking her with her own hair). Thus, if Mr. Bauer knew the victim was unconscious and it is likely that he did (based on alleged messages where he admits to choking this Ohio woman unconscious) it is unlikely that the Court will conclude that the victim could give consent to that sexual act. That is because in the moments where she was allegedly unconscious, she was without her right to withdraw consent from the alleged sexual act.
As we dive further into the Bauer proceeding over the next few days and week, do not lose site of this aspect of the law.