The NSW Department of Communities and Justice is currently conducting its statutory review of the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021. This review asks whether the 2021 ‘affirmative consent’ reforms to the Crimes Act 1900 are working as intended and whether further changes are needed.
Our formal submission to the review is necessarily legalistic. It engages with sections, subsections, burdens of proof and statutory definitions. But this blog post does something different: it sets out the feminist analysis underpinning our submission: why, from a feminist perspective, the concept of ‘consent’ under patriarchy is structurally and systemically limited in heterosexual relationships, and why any law that rests on ‘free and voluntary agreement’ risks legitimising men’s sexual subordination of women rather than ending it.
What the review is about
The 2021 reforms amended the Crimes Act 1900 to define consent as ‘free and voluntary agreement’ and clarify that a person does not consent if they are coerced, intimidated, substantially intoxicated, asleep, or subjected to certain forms of deception. Importantly, it also requires an accused to have taken steps to ascertain consent, rather than simply assuming it.
These changes were widely described as introducing an ‘affirmative consent’ model. The statutory review now underway must assess whether those provisions are effective in practice and whether they should be improved or extended.
Our submission accepts that these reforms are a procedural improvement on what came before. They make it harder for men to rely on silence or passivity as a defence, and they recognise some of the realities of women’s trauma responses. But they do not disturb the foundational assumption on which the law of sexual offences still rests: that, even in profoundly unequal societies – where men hold power over women – it is generally possible for a woman to give free and voluntary agreement to sex with a man.
From a feminist standpoint, this assumption is precisely what must be interrogated.
Consent as a legal burden on women
The law’s central organising concept is consent in heterosexual relationships. On one side of the line is ‘rape’ or ‘sexual assault’; on the other is ‘sex’. Everything turns on whether a woman’s participation is classified as ‘free and voluntary agreement’.
This liberal, individualised framework assumes that women and men approach sexual encounters as equal individuals. It assumes that women can meaningfully refuse, and that when women say ‘yes’, that ‘yes’ is taken at face value as an exercise of a woman’s autonomy.
In reality, women’s sexual lives are shaped by economic dependence, fear of homelessness or poverty, emotional manipulation, and fear of male anger, violence, or withdrawal. We are socialised to prioritise male pleasure and avoid male displeasure, often against the backdrop of prior trauma (or just everyday experience), including child sexual abuse and domestic violence.
Against this background, a very large proportion of what the law calls ‘consensual’ sex is, for women, unwanted sex endured out of fear, duty, exhaustion, habit, ‘kindness’, or survival. Only a small fraction of the most extreme cases are recognised as rape or sexual assault. The rest is treated as ordinary, acceptable ‘sex’.
The effect is that consent becomes a legal and social burden on women. Once sex has occurred, the default assumption is that she consented. It is then her burden – through police statements, evidence, and cross-examination – to prove that she did not freely and voluntarily agree. The law starts from the presumption of access to women’s bodies and asks what exceptional circumstances might negate that access.
Coercive control and the myth of free agreement
One of the most serious blind spots in the current law is its limited engagement with coercive control.
NSW has taken important steps by defining ‘domestic abuse’ in the Crimes (Domestic and Personal Violence) Act 2007 to include behaviour that coerces or controls a person, unreasonably restricting their liberty and day-to-day activities. Coercive control is widely understood, including in Australian Government guidance, as a pattern of behaviour over time that creates fear and denies a victim-survivor’s liberty and autonomy.
These are precisely the conditions under which meaningful consent becomes vanishingly unlikely.
In an intimate relationship where a man controls a woman’s access to money, housing, children, or social support, or where he constantly monitors her movements and communications, a woman’s ‘agreement’ to sex is often a survival strategy. She may say ‘yes’ to avoid a worse outburst, to protect children, to stave off punishment, or simply because resisting feels futile. She may also have been groomed into believing that she owes him sex as part of her female role. None of this looks like ‘free and voluntary agreement’.
Yet, in our current framework, sexual offences are still largely assessed as discrete, incident-based events. Even with the 2021 reforms, the prosecution is expected to prove that at the time of that sexual act there was coercion, intimidation, or another listed vitiating factor. The broader pattern of control, fear, and domination is treated as background rather than as the central fact that defines the relationship.
A feminist analysis insists that this gets it backwards. Where there is coercive control, the presumption should be that sex is not freely agreed.
The ‘reasonable steps’ test and the problem of pressure
The 2021 sexual consent reforms introduced a requirement that an accused must have taken steps to ascertain consent. On paper, this looks promising: it appears to place a positive responsibility on men to check whether a woman is willing – rather than assuming she is.
But the test is still framed in minimal, procedural terms. It asks only whether, within a reasonable time before or at the time of the sexual activity, the accused said or did anything to find out whether the other person consents. There is no requirement that he respects the integrity of her first refusal, or that he refrains from badgering or ‘wearing her down’. Nor does it require him to consider the power he holds over her in that context: for example as an abusive partner, employer, landlord, or male in a position of authority.
In practice, this means a man can satisfy the ‘reasonable steps’ test by asking once – or even several times – until a tired or frightened woman eventually says yes. The law treats that final ‘yes’ as curing everything that came before. It does not ask: Did she agree because she wanted to? Or because resistance had become too costly or burdensome?
From a feminist perspective, this is not a genuine affirmative consent standard. It still allows men to treat women’s bodies and boundaries as something to be negotiated away, rather than as decisive and autonomous.
Affirmative consent versus the presumption of access
The 2021 NSW reforms were presented to the public as introducing ‘affirmative consent’. In everyday language, many women understood this to mean that a man must obtain a clear ‘yes’ before proceeding, and if he does not, there is no consent.
Critiques of such reforms often suggest that they invite the state to ‘invade people’s bedrooms’ or police private intimacy. This is a misunderstanding. These laws are not intended to script consensual encounters or monitor the bedroom; rather, they are the legal mechanism used to determine, retrospectively, whether a man raped a woman. The question is not whether mutually desiring partners are following a checklist, but whether a man who proceeded without active agreement can rely on a woman’s silence or passivity to escape a criminal conviction.
But the statutory structure continues to embed a different logic.
The Crimes Act defines consent as ‘free and voluntary agreement’ and then sets out a list of circumstances where consent is taken to be absent (force, fear, substantial intoxication, certain forms of deception, and so on). This keeps the focus on finding reasons why consent was not present rather than on requiring positive evidence that it was.
At trial, this means the practical battle is often about whether one of those negating factors can be proved. If a woman was drunk but not quite ‘substantially’ intoxicated, or frightened but not in a way that meets a narrow view of ‘intimidation’, the defence will argue that she must have agreed. Her silence, stillness, or lack of overt resistance is then reinterpreted as consent.
A genuine affirmative consent model would invert this starting point. It would say that if there is no communicated ‘yes’ – through words or clear, active conduct – then there is no consent. The burden would rest on the person seeking sexual access to show they obtained that affirmative indication, and silence, passivity, or mere acquiescence could never qualify.
But feminism goes further. It asks: what counts as an ‘affirmative indication’ in a context of structural inequality? Can a ‘yes’ extracted from a woman who is financially trapped, emotionally abused, or living in fear ever be treated as the legal equivalent of a ‘yes’ spoken in safety?
Why our submission looks more ‘legal’ than this blog
Our formal submission to the Department engages with this critique through the tools available in legislation. We recommend creating a statutory presumption that sex is non-consensual where there is proven coercive control unless the accused can demonstrate a genuinely free agreement. It also recommends explicitly recognising participation due to fear of coercive control as non-consent, tightening the ‘reasonable steps’ test so that it requires respect for initial refusals and consideration of power dynamics, and reframing the definition of consent to require a communicated, affirmative indication of willingness, not merely the absence of a negating factor.
Those are legal levers. They operate within the existing consent paradigm, but they at least nevertheless push it towards greater alignment with the reality of women’s lives.
We want this blog post to sit alongside that more technical work. Our purpose here is to make explicit the feminist analysis that underlies our recommendations: that ‘consent’ under male supremacy is often a veneer over coercion; that coercive control, by design, destroys the conditions for women’s free choice; and that a legal system that starts from the presumption of male sexual access and then carves out a narrow category of ‘rape’ will always leave most women’s experiences of sexual violation unnamed and unaddressed.
Where to from here?
The statutory review of NSW’s sexual consent reforms is an important moment. It is an opportunity not only to fine-tune drafting, but to ask more fundamental questions. Whose safety is centred in the law? Whose choices are treated as real? And what does it mean to speak of ‘free and voluntary agreement’ in a world where men still hold structural and systemic power over women in the home, at work, online, and in public life?
Our submission answers those questions by proposing concrete amendments to the Crimes Act and by insisting that coercive control and domestic abuse be fully integrated into sexual offences law. But we have aimed here to set out the deeper feminist critique that motivates that work.
For women and girls, the stakes could not be higher. A law that takes male access to our bodies as the default and asks only for reasons to deny it is not neutral. It is part of the structure of our subordination. Any serious review must be willing to confront that reality – and to begin, however cautiously, to re-draw the lines.
Read our full submission, below. We encourage like-minded groups to consider using our materials to help develop their own.
