A law to protect society from an imaginary evil
“It’s not my occupation that’s the problem but your bourgeois morality.“
Sex worker on International Whores’ Day in Berlin. © Matt Lemon Photography. All Rights Reserved. This photo was taken upon request by Hydra e.V. and published with permission of the person depicted therein.
About this text
The below is a translation of a key issues paper for a law claiming to “protect prostitutes”, which would apparently function as a supplementary law to the German Prostitution Act of 2002 (ProstG). Translation by Matthias Lehmann. Research Project Germany. Every effort has been made to translate the complex legal language in such a way, that the translation remained virtually verbatim while also being intelligible. All footnotes are author’s notes. Where a verbatim translation proved difficult, the German original is provided as footnote. Squared parentheses in the text and further footnotes include additional clarifications and comments. Click here to download the original version of the document in German. Any questions, comments or suggested edits are welcome.
A law to protect society from an imaginary evil
In my personal view, the underlying spirit of this bill appears to be the perception of sex work as a social evil the government cannot rid society of and feels therefore obligated to impose regulations on it to such an extent where completely adhering to them is rendered virtually impossible, which in turn will enable law enforcement agencies to persecute sex workers and operators of prostitution businesses. Hence, the title of this bill is utterly misleading and an insult to sex workers fighting for equal rights under the law.
In its current form, the bill will not protect sex workers, but instead it aims to protect society from the imaginary evil of prostitution. In doing so, the bill adds to the existing stigma attached to sex work and the violence resulting from it. I therefore condemn this bill in the strongest possible terms. Detailed analyses of these alarming changes to the German prostitution legislation shall be added as soon as they are available.
Key Issues Paper for a Law to Protect Those Working in Prostitution (Prostitutes Protection Law, ProstSchG) 
Status: August 14th, 2014
With the introduction of the Prostitution Act of 2002 (ProstG) by the Red-Green federal government  it was clarified that agreements between prostitutes and their clients are no longer considered immoral and therefore no longer void under civil law. This aimed to remedy legal disadvantages for those concerned , such as the exclusion from the social insurance system. The evaluation of the law in 2007  as well as field reports have shown, however, that the expectations associated with the prostitution law were only partially fulfilled. Therefore, legal measures have to be taken to better protect those working in prostitution, to strengthen their right of self-determination, and to fight crimes in prostitution as well as human trafficking, violence against and exploitation of prostitutes, and procurement.  The Prostitutes Protection Law is supposed to achieve this.
Aims of the Law
The law pursues the goals
- to strengthen the right of self-determination of people in prostitution
- to create specific legal foundations to safeguard contractual working conditions and to protect the health of those working in prostitution
- to improve the regulatory instruments to monitor commercial prostitution 
- to improve the legal certainty for legally exercised prostitution
- to exclude and eliminate dangerous manifestations of prostitution and those forms of prostitution that are socially intolerable or harmful to minors
- to fight crimes in prostitution as well as human trafficking, violence against and exploitation of prostitutes, and procurement.
Scope of Application
The law’s scope of application is intended to include
- all manifestations of prostitution; prostitution encompasses the commercial provision of sexual services. Sexual services are sexual acts with present persons in exchange for remuneration.
- all business that facilitate the provision of sexual contacts in return for payment (brothels and brothel-like businesses) ; this includes especially brothels, brothel-like businesses, as well as apartment prostitution and vehicles used for prostitution
- commercial agencies facilitating sexual contacts in return for payment between third parties (prostitution agencies, escort services)
- commercial events aiming to provide opportunities for sexual encounters in return for payment (prostitution events)
The respective definitions of terms will follow in the bill.
Concessions for Brothels and other Venues offering Sexual Services [8-10]
In the future, operating a brothel will only then be permissible if the responsible authorities have issued a concession [statutory permission requirement]. Such concessions shall also govern the commercial facilitation of sexual contacts in return for payment between third parties. The prerequisites for granting such concessions will be tailored to the different business models. 
The concessions and the related prerequisites and legal consequences shall be developed in accordance to the models of other commercial concessions. An exemption from concessions shall apply if a single person is using an apartment for her or his own work as a prostitute (apartment prostitution by the owner of the apartment). 
In the course of the wording of the bill it will be examined how to include an option to extend statutory permission requirements via ordinances (e.g. in accordance to § 33g GewO)  to additional forms of commercial provisions of sexual services, taking into account new developments in the area of sexual services (e.g. via the internet).
A transitional regime must be established for brothels already in existence.
Statutory permission requirements shall not apply for the occupation as prostitute.
Prerequisites for the Issuance of Concessions
The following minimum prerequisites shall govern the issuance of concessions:
- Reliability Check 
Concessions are to be denied when facts justify the assumption that operators do not possess the required reliability. The reliability check and other personal prerequisites shall be developed in accordance with common standards used in the Trade Regulation Act (i.e. that especially prior criminal convictions justify assumptions of unreliability).
Reliability checks shall extend to any deputies of the operators and any persons entrusted with management tasks. Where necessary, it shall be made possible to impose employment bans on unreliable persons.
- Prohibition of prostitution businesses whose operational concepts endanger prostitutes’ right of self-determination
Operational concepts of prostitution which due to their nature raise fears of endangering the right of self-determination or health of prostitutes or other persons, or noticeably abet the exploitation of prostitutes, will be prohibited by law. No concessions can be issued for corresponding prostitution businesses or prostitution events; they are to be forbidden, as soon as they become known. This applies e.g. for flat rate brothels and rape gang bang parties. 
- Minimum requirements
Concessions must only be issued if spatial, hygienic, as well as health and safety conditions are fulfilled, necessary for the protection of prostitutes, employees, guests as well as third persons, and if the plans are in accordance with building regulations. The essential requirements are to be written into law.
In order to gather initial experiences with the implementation of statutory permission requirements, it is planned to allow for differentiated and gradual standards according to respective business types, both where minimum requirements and the implementation regulations via ordinances are concerned (by the federal states or the federation, possibly with consent of the Federal Council , see e.g. § 33f GewO).
- Requirements for business standards; requirements for the protection of employees, other persons active there and third parties, as well as youth and the general public
Concessions can be linked, even retroactively, to requirements for the protection of prostitutes, employees and third parties, as well as to protect youth and local residents. If needed, it shall be possible to adopt corresponding requirements and directives, even for forms of prostitution that do not require concessions (e.g. apartment prostitution by the owner of the apartment; see above )
- Limitations of concessions; regular controls of requirements; withdrawal and revocation of concessions
Concessions can be furnished with limitations. Authorities shall be obligated to monitor the maintenance of statutory permission requirements regularly. Any event of subsequent unreliability shall lead to the withdrawal and revocation of concessions. Withdrawals and revocations shall also be possible in the event of essential changes of businesses or violations of obligations.
Obligations of Operators
The following particular obligations of operators shall be regulated:
- Presenting the necessary documents for concessions, including business concepts and evidence of contracts to be agreed upon with prostitutes (a contractual basis is necessary even if they are to act as self-employed persons on the premises), e.g. to effectively fight usury in connection to room letting. 
- Duty to report persons working in the business as prostitutes (registration and de-registration)
- Verifying the registration of prostitutes who are to take up work (see below under registration)
- Prohibiting the presence of minors during business hours
- Informing guests and prostitutes about safe sex practices
- Providing condoms
- Supplying information and granting access to documents as well as to premises to responsible authorities (see also under review and monitoring by authorities)
- Enabling prostitutes’ access to health and social counselling services of their choice
- Complying with statutory and official requirements
Duty of notification and registration for prostitutes
A duty of notification and registration for prostitutes shall be introduced (each time they take up commercial prostitution in a municipality). A verification document will be introduced for prostitutes who registered with the responsible authorities, which can then be produced e.g. to brothel operators and authorities, and where necessary to clients. The conception of the law will take into account the justified interest of the persons required to register to have their personality rights and data protected.
The registration shall at the very least be linked to informing prostitutes about existing offers for health and social counselling services, compulsory health insurance, as well as the legal status of prostitutes.
Prohibition to advertise unprotected intercourse; other advertising restrictions
Direct and disguised forms of advertising risky sexual behaviour in return for payment, especially unprotected sexual intercourse, as well as advertising commercial offers providing opportunities for unprotected sexual contacts shall be prohibited by law.
Review and monitoring by authorities; powers of authorities
To fulfil their tasks, the rights and duties for responsible authorities to review and monitor [prostitution businesses] shall be regulated, including the right to inspect and enter [premises] (e.g. in accordance to §§ 29 ff. GewO).
The responsible authorities implementing this law are to be determined by the federal states.
The powers granted to state authorities and the police by other federal or state regulations remain unaffected.
Prohibiting the pursuit of business activities; sanctions
In the event of breaches of obligations by business owners, regulatory measures (directives, requirements, withdrawals of concessions) are planned to enforce compliance with requirements and to prevent dangers, which may go as far as to prohibit the pursuit of business activities due to unreliability in accordance to the regulatory framework of the GewO. Where applicable, it shall also be regulated, which breaches of obligations can be punished as administrative offences.
Legal relationship between prostitutes and operators
The boundary between endangering the sexual self-determination of prostitutes to a degree worthy of punishment and admissible guidelines as part of contractual relationships between prostitutes and brothel operators shall be regulated by law. The legal framework still requires agreements with the [Ministry for Justice and Consumer Protection] BMJV, particularly with regards to any overlaps with existing criminal law.
As a basic principle, it shall remain possible to engage in prostitution both in a self-employed capacity and in an employment relationship liable to insurance deductions. Directions that interfere with or endanger the sexual self-determination of prostitutes remain inadmissible.
Currently, prostitution occurs, at least formally, almost entirely as a form of self-employment, and in brothels the contractual relationships between operators and prostitutes are frequently not determined by labour contracts. Nonetheless, prostitutes are more often than not largely integrated into predetermined operational processes. Such cases appear to constitute fictitious self-employments. Brothel operators shall then remain liable, where applicable in accordance to § 266a StGB  (Withholding and misappropriation of remuneration), for the failure to pay [insurance] contributions.
Municipal development and control instruments shall remain in force without limitation 
The existing tools on a municipal level to control and develop areas where prostitution is permitted shall remain unaffected on the basis of off-limit zone ordinances according to Art. 297 EGStGB , as well as stipulations of building regulations and planning permissions.
Independent matter subject to regulation outside the GewO
To realise the described legislative initiative (as new principle law ), an independent law shall be created outside the GewO (Law to Protect Those Working in Prostitution, Prostitutes Protection Law, ProstSchG); where applicable, necessary amendmends of existing laws can be undertaken via additional articles in an omnibus bill. 
On the basis of a preliminary assessment, the new law does not require the approval of the Bundesrat. 
Entry into force
The law shall be published in the Federal Gazette  no later than June 1st, 2015, and in light of the regulations defining the areas of responsibility, which must then be produced, come into force in the federal states on January 1st, 2016.
An evaluation of the law after three years shall be written into the law.
“Moralising Law”: Reform Proposals for the German Prostitution Act – Interview with Fabienne Freymadl, Political Spokeswomen for the Professional Organisation for Erotic and Sexual Services (Berufsverband erotische und sexuelle Dienstleistungen, BesD)
More Rights For Victims of Human Trafficking – Interview with Heike Rabe, Policy Advisor at the German Institute for Human Rights (Deutsches Institut für Menschenrechte)
A sham of the “forced coalition” – Human Trafficking and Prostitution in the Coalition Agreement
Facts and Figures about the German Prostitution Act – Summary of Expert Symposium in Berlin
 Original: „Gesetz zum Schutz der in der Prostitution Tätigen/Prostituiertenschutzgesetz (ProstSchG)“; Germany’s current prostitution law is called „Prostitutionsgesetz (ProstG)“
 the then ruling coalition of Social Democrats and the Greens
 The concerned here refers to sex workers, not their clients.
 Federal Ministry for Family Affairs, Senior Citizens, Women and Youth “Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act)” 2007 URL: http://www.bmfsfj.de/RedaktionBMFSFJ/Broschuerenstelle/Pdf-Anlagen/bericht-der-br-zum-prostg-englisch,property=pdf,bereich=bmfsfj,sprache=en,rwb=true.pdf
 Alternative translation: “pimping”
 Original: “gewerblich ausgeübte Prostitution”
 Original: “Prostitutionsstätten”
 Literal translation: statutory permission requirement
 Please note that brothel is used here and for the rest of the document to translate “Prostitutionsstätten”, which means brothels as well as brothel-like businesses.
 Original: “Angebote sexueller Dienstleistungen”
 Original: “Gewerbeausprägungen“
 It is important to note that this passage is ambiguous. “Inhaber” can refer either to registered proprietors or occupants of apartments.
 GewO: Trade Regulation Act
 Alternative translation: “trustworthiness”; likewise, where this document mentions “unreliability” or “unreliable”, the alternative translation would be “untrustworthiness” or “untrustworthy”.
 It is important to note that this passage seems to suggests that gang bang parties constitute rape. In the BDSM scene, the term “rape gang bang party” describes gang bang sex where the participating sex worker pretends to be raped. Regardless of one’s personal view on such practices, this does not constitute rape.
 Upper House of the German Parliament
 See footnote 11; It is important to note that this passage seems to leave sex workers working in apartments defenceless as it appears to open the door for arbitrary interpretations of the law by local authorities.
 This passage may refer to hotels, apartments, private rooms and so-called Laufhäuser where sex workers can rent rooms and then solicit clients, and where they do not share their income with the owners of such premises outside the rent due for the use of the respective rooms.
 StGB: Criminal Code
 Original: “Kommunale Gestaltungs‐ und Steuerungsinstrumente bleiben uneingeschränkt bestehen“
 Introductory Law to the Criminal Code
 Original: “Stammgesetz”
 Original: “Änderungen bestehender Gesetze können im Wege einer Ausgestaltung als Artikelgesetz in zusätzlichen Artikeln geregelt werden.“
 It is important to note that his passage indicates that the government plans to bypass the Upper House of the German Parliament, a hurdle the previous bill, submitted by the former ruling coalition of Conservatives and Liberals, failed to pass.