When NSW Women’s Advocacy Alliance attended DCJ’s stakeholder roundtable on the sexual consent reforms review last month, one issue stood out sharply: despite the language of ‘affirmative consent’, the law still often operates by searching for reasons why sex should not have happened, instead of demanding clear proof that it should have happened.
The roundtable, chaired by the Executive Director of DCJ’s Policy Reform and Legislation Branch, brought together organisations including Women’s Legal Service NSW, ACON, Inner City Legal Centre, Wirringa Baiya Aboriginal Women’s Legal Centre, the Office of the Women’s Safety Commissioner, SWOP, the Australian Association of Social Workers and Collective Shout, as part of a statutory review due to report to Parliament by December 2026.
The review is statutorily confined to specific provisions of the Crimes Act 1900 (NSW) and the Criminal Procedure Act 1986 — principally the affirmative‑consent requirement, the fraudulent‑inducement provision, jury directions, and sexual‑experience evidence. Within those parameters, NSWWAA went with a clear position: the 2021 reforms were an improvement, but they are not yet enough.
The structural gaps in NSW consent law
Our submission argued that despite the genuine progress of the 2021 reforms — which shifted responsibility for ensuring consent onto the accused — the law remains structurally incomplete.
First, it is not yet a true affirmative‑consent model. While the reforms introduced the requirement that consent be ‘free and voluntary agreement’, the practical work of a trial still revolves around proving why consent was absent — establishing one of the negating factors listed in section 61HJ — rather than requiring positive proof that it was present.
Most urgently, the law does not adequately address coercive control. In that context, we argued that a genuinely affirmative model would treat the absence of a communicated, affirmative indication of willingness as sufficient to establish non‑consent, without the prosecution having to locate a specific negating factor such as force or intoxication. The law as it stands is still, in effect, looking for reasons why sex should not have happened, rather than requiring positive proof that it should have happened — a concern we put explicitly on the table at the roundtable.
Second, the ‘reasonable steps’ test under section 61HK is too weak. Currently, an accused need only have ‘said or did anything’ to find out whether the woman consented. That standard does not require a man to respect a woman’s initial refusal. He may ask repeatedly, apply pressure, and wear her down until she acquiesces — and the legal test may still be treated as satisfied. We argued that there must be an ‘all reasonable steps’ test added and explicitly defined to include respecting an initial refusal or hesitation, not badgering or pressuring a woman into acquiescence, and taking account of any history of domestic abuse or power imbalance in the relationship.
How domestic‑abuse law and consent law are out of sync
In our view, the most serious failure in the current framework is the structural gap between the Crimes (Domestic and Personal Violence) Act 2007 and the consent provisions in the Crimes Act 1900. The DPV Act now recognises domestic abuse to include coercive and controlling behaviour over time, yet the sexual‑consent provisions barely intersect with this recognition. A man can be legally identified as a coercive controller in family or domestic‑violence proceedings and yet face no sexual‑assault liability if a specific sexual act fails to meet the narrow threshold of ‘coercion’ as courts have interpreted it. The two statutes operate in silos, and women in abusive relationships fall through the gap between them.
This specific legislative disconnect was not on the formal agenda and, so far as we saw, no other organisation at the table raised it directly. The meeting canvassed a number of important issues, but the gap between the recognition of coercive control in the DPV Act and the consent framework in the Crimes Act was not otherwise put on the table. Under ‘further issues’, it therefore fell to us to put it there.
We then made three specific legislative proposals.
- A statutory presumption that sexual activity during a period of established coercive control or domestic abuse is non‑consensual unless the accused can demonstrate it was freely given.
- An explicit amendment to section 61HJ providing that there is no consent where a woman participates because she is subject to, or fears, coercive control — including fear of losing money, housing, or access to her children.
- A mandatory provision under section 61HI requiring courts and juries to take evidence of domestic abuse and coercive control into account when assessing whether any apparent agreement was freely and voluntarily given.
Together, we pointed out that these amendments would bring the Crimes Act into coherence with the state’s own recognition that ongoing coercive control denies a woman’s liberty and autonomy. A ‘yes’ given to a man who controls a woman’s finances, housing and physical safety is fundamentally different from a ‘yes’ given in a relationship of equality. The law should say so.
Deception, fraud, and women’s bodily integrity
A significant portion of the meeting was devoted to the fraudulent‑inducement provisions under section 61HJ — the question of when a person’s conditional agreement to sex is vitiated by deception. This is a live area of reform, and the discussion raised concerns about the potential for the provision to be misused or to produce unintended consequences.
What troubled us was not that those concerns were raised, but the direction the conversation sometimes took. Several hypothetical cases were floated where a person later felt deceived about who they had had sex with, or about key aspects of the other person’s embodiment or personal situation. Rather than asking the fundamental consent question — did this person truly agree to sexual activity with that particular partner on those terms? — the focus often shifted quickly to whether the complainant’s boundaries were themselves evidence of prejudice. In effect, objections were treated as bigotry, not as possible consent problems.
For us, that misses a deeper point. People do not consent to sex in the abstract. They consent to sexual activity with a particular person, in that person’s embodied reality, on particular terms. Deliberate deception about who that person is, in ways that matter for bodily integrity and safety — for example, pregnancy risk, risk of disease, or fundamental facts about the nature of the partner — goes to the heart of consent. The law’s job is not to re‑educate people’s sexual preferences or tell women our boundaries are illegitimate because they do not align with a particular belief system. Its job is to make sure that, where someone agrees to sexual activity, that agreement is not obtained by serious, material deception.
The fraud provision exists to protect women from being tricked into sexual activity we would never have agreed to if we had known the truth. That includes serious, material deception about things that directly affect a woman’s body and safety. These deceptions go to the heart of a woman’s decision to agree to sexual activity, and the provision must continue to capture them.
We are open to clarifying that fraud should not be used to target harmless non‑disclosure or to licence prejudice — that is a legitimate concern. But there is an equal and opposite risk that receives less attention: if the provision is narrowed too far, women may lose a remedy they currently rely on when men deliberately mislead us about matters that directly affect our bodily integrity. Proposals framed as protecting one group from misuse must not inadvertently leave women with no recourse when a man exploits deception to circumvent our genuine agreement. The provision should not be cut back so far that it no longer does its core job.
Next steps for the consent reforms
We will continue to engage with this review as it progresses and will publish our full submission on our website. The December 2026 deadline for the report to Parliament is an opportunity — but only if the review is willing to go beyond minor tweaks and confront the structural gaps that remain, especially around coercive control, the reasonable‑steps test, and genuine affirmative consent.
Read our original submission, below.