Affirmative Consent is Not Enough: A Feminist Critique of the NSW Reforms and the Limits of Consent under Patriarchy

Abstract

ABSTRACT On 1 June 2022, long-awaited reforms to the law of sexual consent came into force in NSW. The central feature of the amendments is the introduction of affirmative consent – a ‘yes means yes’ standard which requires positive communication for sex to be lawful. In the context of national conversation around the prevalence of sexual assault, instituting affirmative consent is an important step – but is it enough? This paper considers the NSW model and introduction of affirmative consent in the context of feminist theory, particularly the arguments raised by Catharine MacKinnon in Toward a Feminist Theory of the State. Engaging with the limits of the consent framework as a product of a liberal, patriarchal system is critical to improving the legal recognition of the spectrum of sexual assault experienced by women.