The swiftly evolving legal landscape and the drive by states to create a uniform definition of sexual consent have come about as attempts to reduce sexual violence on college campuses.
The pendulum has swung in this direction in response to higher education's failure to effectively address sexual assault and society's growing intolerance of sexual violence.
California and New York recently passed pieces of legislation that require public and private colleges and universities to adopt comprehensive sexual violence policies and procedures that include an affirmative-consent standard.ColumnYoung: 'Yes means yes' standard is unnecessary
Policies not based on this standard require evidence of force or resistance by the complainant in order for a college or university to conclude that consent was not sought or obtained.
In contrast, consent-based policies define what consent is - mutual, active, knowing and voluntary - rather than what consent is not, such as that which is passive or ambiguous or obtained by force, coercion, or the result of incapacitation from alcohol or drugs.
California's and New York's campus sexual assault laws recognize that consent may be given by words or actions, as long as those words or actions clearly express the person's willingness to engage in the sexual activity.
The two states similarly recognize that silence, lack of resistance or the existence of prior consensual sexual activity does not constitute consent to any other sexual act, and that consent can be withdrawn at any time.
Affirmative consent is helping to change the dialogue about sexual violence. Increased awareness and discussion about what constitutes consent helps students learn about healthy relationships and the importance of consent and good communication.
Further, it gets them to examine the interconnected issues of hooking up, substance abuse, sexual violence and the importance of bystander intervention in a college setting.
State legislation must be multifaceted and help colleges and universities create effective, comprehensive responses to sexual assault, relationship violence, dating violence, sexual exploitation and stalking.
California and New York both require schools to implement comprehensive, ongoing educational programming, which is consistent with guidance issued by the U.S. Department of Education and recommendations from the White House Task Force to Protect Students from Sexual Assault.
More states should follow California and New York's lead and that of a growing number of U.S. colleges and universities that have voluntarily adopted consent-based policies.
Critics of affirmative consent argue it places an undue burden on the initiator of the sexual activity to prove that he or she had consent and violates the due process rights of the accused.
They argue that such policies will lead to an increase of false reporting of sexual assault after incidents that are, in truth, regretted sexual encounters but nonetheless consensual.
Critics also argue that affirmative consent policies are impractical and impossible to enforce and do nothing to improve the resolution of cases involving "he said, she said" arguments and cases in which one or both parties were intoxicated or under the influence of drugs.
Fundamental fairness and due process requires schools to conduct a thorough, reliable, fair and prompt investigation carried out by an experienced, trained and impartial investigator.
An inadequate investigation or the poor handling of a case by an institution does not warrant a movement away from states adopting affirmative-consent policies.
Under Title IX, a school's procedures and processes must be equitable to complainant and the respondent and must be consistently followed in every case.
Schools must also provide comprehensive and ongoing training to administrators and faculty who serve on student conduct hearing panels so that decisions are based on the totality of the evidence, including an assessment of credibility of both parties.
A comprehensive and equitable approach to responding to sexual violence on college campuses is necessary, or the critics of affirmative consent will be proved right.
A move for more states to pass comprehensive campus sexual violence legislation that includes affirmative-consent standards is a step in the right direction.
Belinda Guthrie is the equal employment opportunity and Title IX coordinator with the Affirmative Action Office at Santa Clara University in Santa Clara, Calif.