I had a three-day domestic violence restraining order trial with Judge Dianna Gould-Saltman on November 2020, involving a mother and child (my clients) to request that a restraining order be in place permanently. So, when I read portions of her ruling on August 19, 2021, terminating the temporary restraining order, against the Dodgers pitcher Trevor Bauer by a woman who accused him of sexual assault, my reaction was mixed.
Having been a criminal prosecutor in Los Angeles County for a decade, I understood that her order will have implications on the criminal investigations in Pasadena involving the same parties and whether there would be a criminal filing.
The standard that the petitioner’s (the requesting party) in the civil court is clear and convincing evidence and not having met that, the question now is whether the government can prove beyond a reasonable doubt that criminal act(s) occurred.
Following closing arguments, Judge Dianna Gould-Saltman stated, “there was a distinction between what the accuser thought was permissible in their two intimate encounters and what she communicated to Bauer. “When she set boundaries, [Bauer] respected them.” The Judge did rule that Bauer and the petitioner did have a “dating relationship” under the law — a condition for issuing a restraining order — but the judge said, “she did not consider Bauer a threat to the woman.”
The court found “no supporting evidence that the respondent [Bauer] would cause any harm or even have [future] contact with petitioner.” The court further concluded that, “[I]f she set limits and he exceeded them, this case would’ve been clear. But she set limits without considering all the consequences, and respondent did not exceed limits that the petitioner set.”
The petitioner introduced evidence of a phone call in which Bauer admitted to punching her when she was unconscious. Did she give consent to Bauer’s actions? It has long been well-established in California as in most American jurisdictions, that you cannot give consent to any touching when unconscious.
In People v. Robinson (a criminal case), the California Supreme Court explained, “The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” The term “unconscious of the nature of the act,” . . . is based on this understanding of the consent requirement. Thus, the Legislature has refined the consent requirements for sex crimes to include not only the ordinary circumstance where consent is never given, but also more complicated circumstances where it is obtained through deceit.
Trevor Bauer is still facing potential criminal charges in two states, California and Ohio. Both women still have civil remedies. Although domestic violence restraining order cases are civil in nature, they do not foreclose civil cases for money damages because money damages are not available. A person can lose a domestic violence restraining order and win a civil case for the same conduct because a restraining order protects a person from future conduct whereas a civil lawsuit for money damages redresses for past conduct. What is noteworthy is the admission of Bauer’s attorney, “that he choked the petitioner until she was unconscious and was violent to her during sex,” while her client invoked the Fifth Amendment.
Time will tell whether an appeal is forthcoming but as I tell my clients that an attorney that has experience and familiarity with both restraining order and criminal law is critical since the result in one will have an impact on the other. Again, time will tell whether Bauer will face criminal filings in Ohio and California.
As for my trial in front of Judge Gould-Saltman, she affirmed my clients request and renewed the restraining order permanently. Any inquiries, please call my office at 310-601-7144 or email me directly at [email protected]
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