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 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.
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.
Source: NSW consent law: Still asking why sex ‘shouldn’t have happened’ – The Women’s Advocate