When rough sex is too rough
PROTECTED CONTENT
If you’re a current subscriber, log in below. If you would like to subscribe, please click the subscribe tab above.
Username and Password Help
Please enter your email and we will send your username and password to you.
Susan Estrich
What happens when you have sex that is so rough that the woman ends up with two black eyes and real injuries?
And what if she consented to “rough sex” (whatever that means in practice, because it has no meaning as a matter of law) and got violent sex, ended up unconscious, even, strangled with her own hair?
In Los Angeles, nothing happens, at least if the man involved is Dodger pitcher Trevor Bauer, who has taken the district attorney’s decision not to file charges as a virtual declaration of innocence.
It was consensual, he will tell anyone who will listen.
So what.
That’s right. So what. Let’s assume for the sake of argument that a woman agrees to be beaten into unconsciousness. Do we ask if she agreed? Do we ask a murder victim if they wanted to die? No, we do not. There is no consent defense to a brutal beating. The only reason consent mattered in Bauer’s case is because sex was involved.
So what. It’s not the sex that he should have been punished for. It’s not the sex that was illegal. It’s the beating that accompanied it. Even if it was a consensual beating, which I most highly doubt.
We have spent so long trying to protect sexual choices from those who would substitute their own for the individual’s that we act as if there are no boundaries at all.
There is, obviously, the matter of choice of partners, which should be protected among consenting adults who are capable of giving affirmative consent. That should take care of most of the political battles of the last few decades.
But sexual freedom obviously does not include the right to choose underage partners or partners who are incapacitated or otherwise incapable of giving consent.
And sexual freedom should not include the right to inflict unlimited harm on another person in the name of, what, sexual freedom?
If consent is no defense to beating someone half to death (unless in a boxing ring, I suppose), then why should it be a defense to raping them half to death?
Fine with me not to charge rape. Say they agreed to have sex. But to be beaten?
The law, it bears emphasizing, is all about punishing and deterring wrongdoers, not victims. I don’t know why a woman would allow herself to be beaten even a little, or rather, I do know, because I know such women, and it hurts my heart. We all do. And knowing that makes me no more sympathetic to the men who exploit them.
What was Bauer thinking when he beat a woman he barely knew unconscious as part of having sex with her?
His is not a mindset I care to invade, except to say that his thoughts are ones that the law would call “mens rea,” or bad intent. This is not a man who thought he was making love. This is not a man whose conduct needs to be protected. This is not a man who deserves the law’s sympathy.
The case was messy. There was prior testimony at a restraining order hearing that could have been twisted against her. The prosecutors might have feared, rightly, that the jury would be put off by her “consent” and would be reluctant to convict.
Even so, not charging sends a message about what’s allowed and what’s permissible when it comes to sex, and that message is all wrong. This is not a case about sexual autonomy or sexual freedom but about sexual enslavement, and there is nothing acceptable about it.
