In the rush to comply with recent federal law requiring comprehensive policies and procedures to address sexual violence on campuses, American colleges and universities, Congress and the Department of Education have overlooked one of the most critical issues in combating sexual assault: our medieval notions of what it means to consent to sex.

While we’ve progressed since the day – not too long ago – when a woman who failed to put her life in jeopardy by resisting her attacker “to the utmost” was legally presumed to have consented, we still have a long way to go. The definition of consent in most state criminal codes and university policies is either tautological or entirely absent. Under Florida law today, for example, intelligent, knowing and voluntary consent is defined as, well, “intelligent, knowing and voluntary consent”. But Florida’s definition looks downright detailed when compared to New York, Pennsylvania, Texas and many other states, which basically neglect to define the concept at all.

Consent, particularly in relationships, is a complex issue. Is it a state of mind or an act? If it’s the former, is consent the subjective willingness of the alleged victim or a reasonable person’s perception under all the circumstances of the incident? If consent is an act, exactly what is required? Affirmative communication? Or just the absence of a veto? And what are its bounds? Does consent the night before imply consent tonight? Does consenting to a one type of sex act imply consent to another? The questions don’t stop there. Does a power imbalance void consent? Does voluntary intoxication? And on and on.

While an exhaustive analysis of consent would fill a tome, the gravity of the victim’s harm and the deterrent value of the policy should command more than the current set of functionally useless or non-existent definitions. US supreme court Justice Potter Stewart’s observation in a 1960s obscenity case – that obscenity may elude formal definition, but he knows it when he sees it – doesn’t cut it with consent.

So what does?

There’s a middle ground, demonstrated by a growing minority of schools which, drawing on each other’s efforts, have formulated fuller and more enlightened “affirmative consent (ie, “yes means yes”) provisions on the meaning and limitations of consent. My own school’s definition, which uses Florida’s statutory language as a starting point, is one such example:

The University views “intelligent, knowing, and voluntary consent” as both a state of mind and an act, i.e., the act of clearly communicating one’s willingness through words or conduct. Consent has many boundaries. It may be withdrawn at any time, including any time during a particular sexual activity, and cannot be inferred from the mere absence of an objection. Consent to particular sexual activities does not represent consent to other sexual activities, and past consent to particular sexual activities does not constitute an ongoing consent to those activities. An expression of agreement to engage in a sexual activity that has been obtained by force or threat or based on fear does not represent consent. Consent cannot be obtained from someone who is unconscious, a minor, or whose judgment is impaired through alcohol, drugs, or some other condition, nor is impaired judgment an excuse for the failure to obtain consent from another.

The key here, which is missing from the states’ statutory definitions of consent and the definition in most university policies, is that consent is both a willing state of mind and the act of “clearly communicating one’s willingness through words or conduct”.

While no legal definition can eliminate all ambiguity in every real life context, this one travels light years beyond the prevailing polices that – by permitting silence or nonresistance to be construed as consent – contort the very concept of sexual assault beyond recognition.

By pulling the plug on the most popular and flawed presumptions of consent – “she didn’t say no”, “we did it the night before”, “we’d already begun” – the “clearly communicated” definition announces to the world that consent really means consent, and helps bring rape law (at least on college campuses) into the twenty-first century.

The good news is that one state has moved in the right direction. California has adopted legislation requiring state-supported colleges to incorporate an affirmative consent standard defining consent as “positive, unambiguous and voluntary agreement” in their sexual assault policies. Several other state college systems have followed suit. But by imposing a more rigorous definition of consent only on schools instead of incorporating it into the state’s criminal code, California continues to offer inferior protection to victims that are not students.

Until each state adopts the enlightened formulation of consent for students and non-students alike, rape law will remain mired in its misogynistic past.