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On Thursday, an L.A. Superior Court judge denied a woman’s request for a permanent restraining order against Dodgers pitcher Trevor Bauer. The woman said in her petition for a temporary restraining order, and again on the stand this week at a hearing to make the order permanent, that Bauer had choked her during sex causing her to pass out and she woke up to him assaulting her.
Bauer's lawyers have denied this, saying everything was consensual. Their client has been on paid leave since early July as MLB investigates the woman’s claims, a leave that on Thursday was extended for a sixth time until at least Aug. 27.
The judge’s denial of the permanent restraining order has most probably caused confusion, sadness and outrage for people upset at the woman’s descriptions of violence and feelings of victory for those who see a man being unfairly judged.
For others, it’s a conflicting combination of emotions and thoughts. This range of reactions is normal. I have written on and investigated cases of gendered violence in sports for a fifth of my life, and the most common lesson I take away from individual cases such as this one is that we, the public, will never know what happened.
There is always enough uncertainty to allow questions to form and theories to float. These cases remain somewhere in the gray, a space most of us are uncomfortable occupying.
When faced with so-called he-said-she-said cases, our culture primes us to assume the woman is lying and to empathize with the man accused (philosopher Kate Manne coined the term “himpathy” years ago). We worry first about the ruined life of the man or, in the case of professional sports, the impact it will have on a team, then about the motives of the woman who came forward, and then, perhaps after that, the continued impact on the woman and what a case can or should teach us about consent and care.
This is our baseline most of the time when we consider one of these cases, not a neutral state under which all of the evidence is measured fairly and weighed accordingly.
To that end, here is what we know in Bauer’s case:
● At the end of June, a California woman filed an 85-page petition for a temporary restraining order against Bauer in which she detailed the bodily damage Bauer did to her during two different sexual encounters earlier this year, the worst of which she says happened after he choked her until she was unconscious and included him punching her and causing a split lip, a swollen jaw and cheekbones, two black eyes, “over 10” scratches on her face and bruises on her gums, buttocks and vagina.
● Part of her petition included documentation from the two medical examinations she underwent after their second meeting, which included a diagnosis of an “acute head injury.”
● Bauer and his legal team have not denied the violence but have instead framed it as consensual rough sex, a fraught argument with a fraught legal history.
● Even if the woman did consent to the more violent parts of the sex (which the woman denies she did), Sheryl Ring, a lawyer who also writes about baseball at Beyond the Box Score, has noted that “every state has enacted a statute which states that you cannot consent to the infliction of grievous bodily harm. In other words, it doesn’t matter what the context is: whether or not sex is involved, you cannot legally consent to an act which will result in your death or serious bodily injury.”
But that’s criminal court.
● A Los Angeles civil court judge has denied the woman’s permanent restraining order saying, in part, “when she set boundaries, [Bauer] respected them” and that part of the woman’s declaration about Bauer’s treatment towards her in the month leading up to her filing the petition for a restraining order was misleading. But, as Ring also wrote on Twitter immediately following the judge’s decision, “Bauer's attorney conceded that he choked the petitioner until she was unconscious and was violent to her during sex. He himself invoked the Fifth Amendment. He was not 'found innocent.' He was found to be not a future threat to her.”
It’s a narrow, though not insignificant, legal lane.
● In a Washington Post report another woman, this one in Ohio, a year before Bauer met the woman in California, applied for a temporary restraining order against him for similar reasons, that he physically hurt her during sex without her consent. In both cases, Bauer has said that the woman is lying in order to extort money from him.
● Before Bauer signed with the Dodgers, he already had a poor reputation for how he treated women on social media.
● There is an ongoing police investigation and an investigation by MLB.
Each of us holds all of that knowledge at once and makes a determination for ourselves about what most probably happened. Our most well-known model for weighing credibility and accountability is that of the legal system, and it offers the possibility of a clear-cut determination: guilty or not guilty.
But while the legal system operates on the sacred “innocent until proven guilty” premise, few people, if any, use that standard in their daily lives as they choose with whom to interact, whom to support, and even for whom to cheer.
In a piece from 2015 that I return to often, a longtime baseball fan, Stacey May Fowles, wrote about what it feels like as a survivor of gendered violence to hear people invoke “innocent until proven guilty” outside of the legal framework.
Fowles writes: "What we don’t talk about is how every person who glibly say 'innocent until proven guilty' initially works on the premise that all accusers are probably liars, that my friends are probably liars, and that I am probably a liar too.”
If you want tidy, linear answers, you will not find them here.
As the Bauer case progresses — and there is still the likelihood of MLB discipline and the possibility of criminal and civil cases — it’s important for fans, media and the general public to recognize that searching for black-and-white clarity is a futile journey.
That’s not to say, though, that we shouldn’t consider what we know and make thoughtful decisions moving forward. Without certainty, thoughtfulness and care is all we have.
Especially as we consider the possibility of Bauer returning to the mound somewhere (not L.A., it would seem) down the line, a return that would almost certainly be accompanied by cheering crowds, messy commentary from sports media and, of course, the inevitable trope of the star athlete redeemed.
This story originally appeared in Los Angeles Times.