Mike Tyson met her that day, she agreed to meet him, went to his hotel room, removed her clothes and they had sex. During the sex she decided she did not want to continue, but he did not want to stop. So Mike was convicted of rape and sent to prison for several years.
Law is there to set standards so people know where they are. In the case of people consenting to sex the law is a mess and is a license for sexual abuse.
While Mike Tyson was imprisoned a similar case in court in the UK recently involving accusations of male rape were dismissed.
The law is framed around basic defaults that are basically wrong. The core principle seems fine at first glance, that two consenting adults should be free to do what they want in private. The problem is that it is hard to prove lack of consent when an adult is threatened and attacked in this way. By the nature of such abuse it happens in private.
The simple cure is a change in the norms of society which draws a clear line: Sexual contact with another human being needs their proven consent beforehand. A new offence needs to be introduced that perhaps is not as serious as rape but serious nevertheless. It could be defined as “sexual contact without prior proven consent”.
US college campuses are now having to issue guidance which has exactly this effect because of an epidemic of “date-rape”. Just being 16 or 18 or whatever the age of consent is, is not enough to ensure consent. What if the person is drunk on some kind of recreational drug or medication, or just very tired, what if they think they are threatened and dare not say no.
In Islamic law, this concern is the primary function of having a wedding: to establish proven consent. Marriage does not have to mean a fifty fifty partnership till death us do part. It is at a minimum a public statement of consent to have sex. Secretive relationships are where abuse happens and though it may be tempting to people, once that door is opened so is the door to sexual abuse.
In its most essential legal consequences marriage serves two purposes. The main one is to prevent sexual abuse by moving the burden of proof off the victim and onto the would be perpetrator. Before someone can have sexual contact with another person they must first establish proof of prior consent with witnesses. A victim of abuse would no longer have to prove in court that they did not consent. Instead the accused would have to prove that there was prior consent.
Mike Tyson should have known that as he could not prove prior consent then having sex with that lady was a crime. He could then protect himself from prosecution by getting proof of consent with witnesses. Once he had that then it would and should be the burden of proof on the lady to establish any accusation against him. Such a proof would have to be not based on subtle details subject to misunderstandings but actions and statements clearer than her previous declaration of consent. This establishes clear lines for people to live by in ways that prevent abuse.
In the Hanafi school of Islamic law a marriage can be as simple as an offer of sex and an acceptance in front of two witnesses. The word in Arabic for marriage is actually the word for having sex: “nikah”.
A secondary purpose of marriage in Islam is about moving the burden of proof about parentage. A marriage is about establishing who the father is by default. This function requires limitations on how long a marriage should be. It is what allows men to have several wives simultaneously whereas women may only have several husband one after the other. In Islam a divorce can take a minimum of three months of separation if the couple have had sex and until birth of a child if the wife has become pregnant.
Other aspects of marriage are up for negotiation. If you want a 50/50 split of assets and work this could be arranged. If the wife wants to be paid for any house work that can be included.
Because of this purpose of establishing parentage, marriage in Islam is always between a man and a woman, But establishing a crime of sexual contact without prior proven consent would apply to all types of sexual contact, including children who are unable to consent and any kind of sexual contact between adults. Avoiding this crime could be done by adults by a reasonable standard of proving prior consent.
If such proof of consent is done other than between a man and a suitably unrelated woman, although it would not be accurate to describe as a legal “marriage” it could however still be a legally meaningful proof the absence of which would help empower all victims of abuse to prosecute their abusers.
There is inevitably also a role for the law to draw a line as to what is allowed in such a proof of consent. People can and do consent to all kinds of medical trials and activities that can be very dangerous or injurious even suicidal. If someone subjects themselves to torturous abuse willingly then the standard of proof of consent must be very high indeed if the abuser wants to avoid proescution.