Sex Work Regulations in Germany

Government

Vorgeblicher Schutz, Vergebliche Maßnahmen: Überblick über Deutschland’s neues Prostituiertenschutzgesetz (ProstSchg)

Zwangsregistrierung - Nicht mit uns! Sex worker protest in Berlin against the ProstSchG © 2015 Emy Fem

Sexarbeiter*innen und Unterstützer*innen demonstrieren gegen das ProstSchG vor dem Bundesfamilienministerium © 2015 Emy Fem

ICRSE präsentiert Briefing Paper über
neues deutsches ‘Prostituiertenschutzgesetz’

[English-language version here]

Anlässlich des Internationalen Hurentags, der an jedem 2. Juni der Besetzung der Saint-Nizier-Kirche im franzöischen Lyon im Jahr 1975 durch 100 Sexarbeiterinnen feierlich gedenkt, präsentiert das Internationale Komitee für die Rechte von Sexarbeiter*innen in Europa (ICRSE) ein Briefing Paper mit dem Titel „Vorgeblicher Schutz, Vergebliche Maßnahmen: Überblick über das Prostituiertenschutzgesetz (ProstSchg)“.

ICRSE ProstSchG Briefing Paper Cover [German]Das Briefing Paper wurde vom ICRSE in Zusammenarbeit mit Hydra e.V. und dem Berufsverband erotische und sexuelle Dienstleistungen (BesD) e.V. mit dem Ziel entwickelt, sowohl politischen Entscheidungsträger*innen als auch Sexarbeiter*innen und ihren Unterstützer*innen eine Analyse des neuen deutschen „Prostituiertenschutzgesetzes“ und dessen erwarteten Auswirkungen auf Sexarbeiter*innen anzubieten, sowie Empfehlungen der Gemeinschaft von Sexarbeiter*innen zu unterbreiten.

Wie darin erklärt, hegt das ICRSE ernsthafte Bedenken hinsichtlich der Art und Weise, mit der das „Prostituiertenschutzgesetz“ die Grundrechte von Sexarbeiter*innen untergräbt. So beschränken die Anmeldepflicht und die Möglichkeiten, Anordnungen gegenüber Sexarbeiter*innen zu erlassen, das Recht auf freie Berufswahl, und die weitreichenden Überwachungsmöglichkeiten, die das ProstSchG den Behörden gegenüber Sexarbeiter*innen einräumt, verletzen das Grundrecht auf Unverletzlichkeit der Wohnung. Besonders schwer wiegt die Speicherung persönlicher Daten in Verbindung mit Informationen zum Sexualleben einer Person, denn sie verletzt das Grundrecht auf informationelle Selbstbestimmung und die Richtlinie des Europäischen Parlaments zum „Schutz natürlicher Personen bei der Verarbeitung personenbezogener Daten“. In Anbetracht der Tatsache, dass ein absolut sicherer Datenschutz unmöglich gewährleistet werden kann, ist die zukünftige Datenerhebung damit höchst problematisch.

Fazit

Das „Prostituiertenschutzgesetz“ ist in der Form, in der es am 1. Juli 2017 in Kraft treten wird, nur vorgeblich ein Gesetz zum Schutz von Sexarbeiter*innen und die darin enthaltenen Maßnahmen sind vergeblich, um Sexarbeiter*innen auf der einen Seite und Betroffene von Menschenhandel auf der anderen nachhaltig zu unterstützen. Stattdessen werden insbesondere in Wohnungen gemeinsam arbeitende Sexarbeiter*innen sowie migrantische, transidente, und anderweitig spezifisch vulnerable Sexarbeiter*innen von diesem Gesetz in die Illegalität gedrängt. Wo Schutz draufsteht, ist daher in großen Teilen schlicht ein Gesetz zur Verdrängung der Sexarbeit enthalten.

Wir laden Sexarbeiter*innen und politische Entscheidungsträger*innen dazu ein, das Briefing Paper aufmerksam zu lesen und die Empfehlungen der Gemeinschaft von Sexarbeiter*innen zu beachten.

Download

Bitte hier klicken, um die deutsche Version herunterzuladen.
Bitte hier klicken, um die englische Version herunterzuladen.

Impressum

Autorinnen: Angela Herter and Emy Fem
Co-Autor und Lektor: Matthias Lehmann (Research Project Germany)
Übersetzung: Ursula Probst
Design: Aleksandra Haduch
Fotos: Matthias Lehmann und Emy Fem

ICRSE ProstSchG Briefing Paper Quotes [German]


Dieser Artikel wurde zuerst am 31. Mai 2017 in englischer Sprache unter dem Titel “Sex Workers’ Rights Day: ICRSE launches Briefing Paper on Germany’s new ‘Prostitutes Protection Act’” auf der Website des Internationalen Komitees für die Rechte von Sexarbeiter*innen in Europa (ICRSE) veröffentlicht. Reproduziert mit freundlicher Genehmigung.


Prostitution: Trade Supervision instead of Repression

Cul-de-sac -- Photo by StockSnap CC0 Public Domain

The plans for the “Prostitutes Protection Law” have reached a cul-de-sac, explains Criminal Law Professor Dr. Monika Frommel. Rather than patronising sex workers with criminal and police laws, they should be protected from exploitative brothel operators by using the trade law.

By Prof. emer. Dr. Monika Frommel

Please note that the copyright for this article lies with Dr. Monika Frommel and is not licensed under a Creative Commons License.

Why do politicians fail yet again [1] to adequately regulate prostitution during this legislative period? The goal of a reform should be to control brothel operators as effectively as possible. But instead, a draft bill has been created that will achieve the opposite: the strict and bureaucratic monitoring of sex workers. Brothel operators, on the other hand, have little to be afraid of.

Instead of “protection” from exploitation, the draft bill, modified several times and unlikely to draw a consensus, includes the duty to register and undergo health checks for those individually engaging in this line of work (it was once called “Bockschein”). [A1] Health authorities are supposed to be responsible for those health checks but they can neither provide comprehensive advice nor offer affordable HIV prevention. If one dictates mandatory health checks carrying potential sanctions anyway, one creates an entirely useless Normenfalle [lit. trap of norms; numerous regulations that are impossible to abide by at all times, which in turn renders them permanently criticisable and sanctionable; translator’s note]. The new provisions concerning police powers are unreasonable anyway. What’s missing is the tailwind for an adequate reform. Headwind there is plenty, however, for example from the fringes of the women’s movement, once interested in emancipation [but now arguing that] buying sex should be banned, clients of “forced prostitutes” should be punished, 90 percent of prostitutes were victims of human trafficking, and prostitution constituted an attack on “women’s dignity” – hard to believe that women who regard themselves as emancipated engage in such proxy battles. [A2] So far, they haven’t gotten their way, but they’ve nevertheless caused damage.

“Economically weak independent entrepreneurs exist not only in this line of work”

It’s simply absurd to prosecute exploitation – as hitherto – via the bizarre detour of making claims about human trafficking, a criminal offence whose legal definition has up until recently been regularly expanded at the instigation of the EU. Everybody involved has known for years that this leads nowhere and cannot lead anywhere. So why then repeat in the future what had not been thought through in the past already but was only ideologically motivated? The ideology is known: human trafficking is always forced labour, prostitution is almost always forced prostitution (apart from a few exotics). How do politicians for women’s affairs get to this simple equation? Many people work under economic constraints. (Apart from extreme exceptions) Brothel operators and third parties force nobody into prostitution. Economically weak independent entrepreneurs exist not only in this line of work. From that perspective, providing sexual services is a job like any other. A “Prostitutes Protection Law” could make sense. What doesn’t make sense is to speak about “coercion” and “voluntariness” exclusively in the context of prostitution but not in other lines of work, where poorly qualified workers are also being exploited. Not the work itself is harmful but the unchecked economical necessity to serve too many clients in order to be able to afford too high rental fees and extra costs. What is now planned complicates the work of those engaged in sex work without providing any benefits for them.

If legislators were interested in a rational, long-term solution and not in phoney, moralising debates, what would be the goal of an effective regulation under the trade law? Technically, brothels would be classified as commercial enterprises requiring permissions from licensing authorities. This would depend on the constantly verifiable compliance with minimum requirements. Experienced authorities could respond flexibly whenever operators would fall short of the specified minimum standards. Those who work there (independently) could examine the files at the trade office and check if the fees deducted for operational costs are in fact realistic, just as tenants have the right to control such matters and have tenants associations who support them in that. Why shouldn’t that be possible at brothels?

“The planned Prostitutes Protection Law relies too heavily on the police”

Only if the trade supervisory board cooperated with those working there would there be a chance to recognise if and where exploitation occurs – which is actually liable to prosecution in accordance with §180a StGB [German Criminal Code; tn] (Exploitation of Prostitutes); but if the responsible trade supervisory board isn’t furnished with the relevant powers, it cannot be proven. Instead of the currently empty threat of criminal proceedings, several more flexible legal instruments could be used. If operators would not fulfil their requirements, one could bar them and their representatives (or straw men) from any further activity in this industry.

Therefore, trade supervision would be the solution, but faced with diffuse resistance [2], the Ministry of Women’s Affairs could not prevail, and it hadn’t planned anyway to discuss the subject earnestly. Viewed in this light, nobody’s surprised that the Prostitutes Protection Law, planned in 2014, continues to rely all too heavily on the police and for that reason has ended in a cul-de-sac. Under the terms of this law, sex workers would have to register with authorities, otherwise they would commit an administrative offence. They would also have to regularly repeat this procedure, and every time they would work at a new location, which is frequently the case, they would have to register anew. In addition, they would always have to carry with them a certificate documenting their timely attendance of mandatory health checks (at the health authorities). What kind of protection is that supposed to achieve?

About Dr. Monika Frommel

Prof. emer. Dr. Monika Frommel - Photo usage worldwide

Dr. Monika Frommel is an emeritus criminal law professor. She studied Law at the University of Tübingen and at the Ludwig Maximilians University Munich, where she obtained her doctorate in 1979 and received her habilitation in 1986. Until 2011, she was the director of the Institute of Sanction Law and Criminology at University of Kiel. Since 1990, she is a co-editor of the legal journal Neue Kriminalpolitik. Her current research interests include criminology from a feminist perspective, in particular the reform of sexual criminal law, and ethics in reproductive medicine.

Photo: Usage Worldwide


Footnotes

[1] In 2014, there still seemed to be hope. See Monika Frommel „Gelingt es in dieser Legislaturperiode, die Prostitution angemessen zu regulieren?“ in: Kritische Justiz 1/2015, pp. 96–109.

[2] This resistance has persisted since 2002. In 2014, even state governments ruled by coalitions of Social Democrats and Greens clearly signalled that they were not ready to agree to controls by the trade supervisory board.

[A1] Bockschein was a colloquial term for a public health certificate, which sex workers had to produce until 2000. The name derives from the Bock, the gynaecological examination chair.

[A2] Since one reader felt it was unclear whether Dr. Frommel was arguing that buying sex should be banned or quoting prostitution abolitionists, the insertion “[but now arguing that]” was made here.


Translation by Matthias Lehmann. Research Project Germany. I would like to thank Dr. Frommel for her permission to translate and publish her article. Every effort has been made to translate this article verbatim. As a result, the wording may appear unusual on some occasions. The photo above did not appear in the original article. Photo: “Cul-de-sac” By StockSnap CC0 Public Domain. Footnote A1 was added for further clarification.

The German original of this article was first published as “Prostitution: Gewerberecht statt Gängelung” at NovoArgumente (January 25th, 2016). Please note that the copyright for this article lies with Dr. Monika Frommel and is not licensed under a Creative Commons License.


Further Reading

Prostitution: Beyond an infantilising feminism – A translation of an earlier article by Dr. Frommel

“I thought it was all different!” – Video highlights from a symposium about the German Prostitution Act in December 2013, where Dr. Frommel was among the panellists


The “Dortmund Model” – Hardly a good example of sex work regulation

Off-limit + tolerance zone Dortmund [cropped]

Off-limit and tolerance zone (in green) in Dortmund’s city centre (click to enlarge)

Last week, a local news outlet in Dortmund published an article that illustrated the gulf between sex workers and proponents of fully decriminalising sex work on the one hand, and even those politicians who oppose forced registrations of sex workers as part of the planned “Prostitutes Protection Law” on the other. The below is a translation of said article and a short commentary.

Prostitution Law: Discussion about Sanctions

The updated draft of a new prostitution law was the subject of a discussion between Sabine Poschmann, member of the German parliament (MdB) for the Social Democrats (SPD), and representatives of the Mitternachtsmission (Midnight Mission), a counselling centre for current and former sex workers as well as trafficked persons, which had previously strongly criticised the design of the draft bill. Where the MdB of Dortmund’s chapter of the Social Democrats and the staff of the counselling centre agreed was that in the updated draft, the Ministry of Family Affairs had taken some of the criticism into account and somewhat softened the tough regulations.

“However, wagging the moralist forefinger is still taking precedence over protecting and helping sex workers,” said Poschmann. She particularly criticised the planned mandatory counselling and forced registration for sex workers. “Unfortunately, our coalition partner shows little willingness to compromise,” Poschmann added. The representatives of the Mitternachtsmission expressed similar views. In their opinion, the current approach will push sex workers into illegality, as experiences in other EU countries had already shown. As Poschmann explained, however, the draft bill does also contain important points, including a ban on degrading practices, such as “flat rate sex”. North Rhine-Westphalia provided sex workers with a good range of assistance, but a precondition for their acceptance would be to create policies that dealt with the subject of prostitution constructively and didn’t stigmatise sex workers. According to Poschmann, Dortmund served as a good example for that. The “Dortmund Model” follows the principle to apply a unified approach of all authorities and support facilities dealing with prostitution. In further consultations about the prostitution law, all affected parties should be heard. This would include both sex workers and brothel operators.

Commentary: With friends like these…

What Poschmann (or at least this article) doesn’t tell you is that the alleged “good example” Dortmund sets includes a city-wide ban on street-based sex work and a complete ban on all forms of sex work in its city centre, with the exception of a single street where sex work businesses are permitted, since the existing law states that cities with 50,000 inhabitants or more must designate sex work tolerance zones within their city limits. In addition, although sex worker “Dany” had successfully challenged the city-wide ban of street-based sex work at the Gelsenkirchen Administrative Court, the City of Dortmund fought back and eventually had the previous ruling overturned earlier this year by the Higher Administrative Court of North Rhine-Westphalia in Münster.

And while Poschmann criticised the SPD’s coalition partner’s moralist forefinger-wagging, she did some wagging herself as she spoke favourably about banning what she considers degrading practices, although sex worker activists have repeatedly demanded to preserve the existing diversity in sex work. As Undine de Rivière, sex worker and press speaker of German sex worker organisation BesD, stated in an interview with Sueddeutsche Zeitung:

“We are categorically for the preservation of the diversity of work places and work modes in sex work. I know women who like to work exactly like that – because they don’t want to be bothered with client acquisition, because they value the secure daily income, because what they earn is often not worse but sometimes even better than elsewhere. And, to put it bluntly: at first glance, flat rate sex may sound overburdening. But more than anything it’s a promotional thing. The flat rate idea works because of male overconfidence. There are customers who pay once, want it ten times, but can only get it up twice.”

Finger-wagging aside, Poschmann’s rejection of forced registrations for sex workers is certainly laudable and it would be too harsh to say that with friends like her, one doesn’t need enemies. But lamenting the Conservatives’ unwillingness to compromise will amount to little more than lip service if Poschmann and her fellow party members will allow Minister for Family Affairs Manuela Schwesig (SPD) and the Conservatives (CDU) to push the “Prostitutes Protection Law” through parliament. The same goes for her talk of further consultations in which sex workers should be heard. The authors of the draft bill already had plenty of coffee and biscuits during talks with sex worker activists and other experts, yet the draft bill reads like a list of everything they argued against. As sex workers worldwide prepare for December 17th, the International Day to End Violence Against Sex Workers, those working in Germany are increasingly worried about the new law and its impact on their health and safety, and as the year draws to a close, the time to change the bill is quickly running out.


The German original of this article was first published as “Prostitutionsgesetz: Diskussion über Sanktionen” by lokalkompass.de. Translation by Matthias Lehmann, Research Project Germany. The original article featured a different photo. Above: “Sperrbezirk Dortmund Innenstadt (alle Prostitutionsarten)” (Off-limit zone Dortmund city centre, all forms of sex work), cropped from the original. Source: City of Dortmund.


“Politically motivated despotism” | Statement by sex worker counselling centre Doña Carmen in response to the derecognition of its charitable status

Wegen Gemeinnützigkeit geschlossen. Photo by ImageParty (modified)

“Closed due to charitable status”

“Imagine if journalists asked us about our opinion about the planned ‘Prostitutes Protection Law’ and we had to say, “Sorry, we can’t talk about that, because our work must benefit the public.” – Franziska Funk, sex worker and member of Doña Carmen e.V.

Derecognition of Doña Carmen’s charitable status due to advocacy for the recognition of sex work as work

Please click here to read Doña Carmen’s statement in German.
Bitte klicken Sie hier, um die Erklärung Doña Carmens auf Deutsch zu lesen.

+++ Update +++ Following a petition by Constance journalist Dennis Riehle, the Hesse state parliament called on the state government to clarify why attac e.V. and Doña Carmen e.V. had their charitable statuses derecognised for engaging in political causes. The state government must now examine the legal situation. Riehle commented: “The petition was dealt with relatively quickly, which in my view indicates that the members of parliament share the concern that this matter, which can hardly be described as coincidental, requires clarification. The authorities will only be able to dispel the doubts if they produce valid arguments.” (Source: Dennis Riehle)

In September 2015, the Frankfurt tax office revoked the Gemeinnützigkeit (charitable status, lit. benefit to the public) of Doña Carmen, Association for the social and political rights of prostitutes, with immediate effect, and backdated its decision retroactively to 2011.

At first glance, the reasons appear contrived: “supporting women in prostitution in tax-related matters”; “offering guided tours through brothels” during the open night at Frankfurt’s station quarter (Bahnhofsviertelnacht). One can only shake one’s head.

But the core accusation levelled against Doña Carmen makes one’s ears prick up: the association is blamed for pursuing political goals, “continuously” and “in a non-neutral manner”, “by campaigning for political interests of prostitutes”. Explicitly, Doña Carmen is charged with engaging in “advocacy for the recognition of sex work as work”. Henceforth, the Frankfurt tax office no longer holds this as a charitable cause.

Gemeinnützigkeitas political weapon

The decision by the Frankfurt tax authority – should it become a legal precedent – is politically explosive since the “charitable status” (Gemeinnützigkeit) is used as a political weapon and the Charity Law (Gemeinnützigkeitsrecht) is being politicised in a reactionary manner. The goal here is to terminate a political consensus, in place for nearly 30 years, which recognises counselling centres for sex workers, which are normally set up as charitable organisations, as experts on the subject of sex work and as advocates for sex workers’ concerns.

Today, Doña Carmen is the target. And tomorrow?

The derecognition of the charitable status has serious repercussions for Doña Carmen with regards to the funding of the counselling centre’s work and causes major problems. Due to chronic underfunding, other counselling centres would experience the same problems. Today, Doña Carmen is being targeted. And tomorrow?

Other associations, e.g. Hydra e.V. in Berlin, Nitribitt e.V. in Bremen, Madonna e.V. in Bochum or Kassandra e.V. in Nuremberg, to name but a few, are all recognised as charitable, although structurally, their statutes are no different. On their websites, they also list political demands that are aimed at the recognition of sex work as work. Thus, if this is about the derecognition of the charitable status of counselling centres for sex workers, then the respective authorities should have no difficulties in proceeding, if they applied the standards of the Frankfurt tax office.

Blatant case of political despotism

The derecognition of Doña Carmen’s charitable status is a blatant case of political despotism and illustrates how these things develop:

Since 2001, Doña Carmen conducts guided tours through Frankfurt’s brothels. Since 2009, this also includes tours as part of the open night at Frankfurt’s station quarter (Bahnhofsviertelnacht). The tax office has been aware of all that for a long time, since the tours were listed in the activity reports presented for the recognition of the charitable status during previous years. Since Doña Carmen’s charitable status was recognised in the past despite the brothel tours, it indicates that it is not the practice of Doña Carmen that has changed but the views held by the Frankfurt tax authorities.

The same applies for engaging in advocacy for the recognition of sex work as work. Doña Carmen has uncompromisingly demanded this right ever since its establishment 18 years ago. Throughout all those years, the association’s charitable status has been reviewed repeatedly without any objections, on the basis of activity reports. Now, however, engaging in advocacy for the recognition of sex work as work has suddenly cost Doña Carmen its charitable status. This is, without a doubt, political despotism.

Timing is not coincidental

It is no coincidence that this derecognition of the charitable status happened at the very time when plans are made for a “Prostitutes Protection Law”, one of the most repressive legislative proposals against sex workers in German history. The federal government currently prepares to adopt a law, which would include the forced registration of sex workers, a measure last in place under the Nazis. In light of these circumstances, it’s nothing short of brazen to demand from counselling centres like Doña Carmen political “neutrality”. It’s probably not a coincidence either that those who have decisively campaigned for the rights of sex workers are targeted first.

Attack on sex workers’ rights

But mind you: the attack on counselling centres is actually one on sex workers. They are the target. Not only are their rights supposed to be eroded, but also their opportunity to access practical support. Therefore, the termination of the political consensus with regards to counselling centres will not be without effect for sex workers. In light of this reactionary development, the rights of sex workers have to be defended even more decisively and more specifically. Doña Carmen will continue to do so in the future. Authorities like the Frankfurt tax office will not bring us to our knees!

Request for donations

Doña Carmen is also in need of financial support and solidarity, however. We ask all those who value our work and commitment for donations, since our own resources won’t suffice to stem the costs for the pending litigation to regain the charitable status at the fiscal court.

Please note: Donations to Doña Carmen e.V. are currently not tax-deductible due to our officially certified advocacy “for political interests of prostitutes”, especially for the “recognition of sex work as work”. However, you can certainly receive written proof of your donation. For details on how to donate or contact us, please click here.

A PDF document containing a detailed analysis of the reasons given by the Frankfurt tax authorities for the derecognition of Doña Carmen’s charitable status can be downloaded on Doña Carmen’s website. This resource is in German.


Translation by Matthias Lehmann. Every effort has been made to translate this article verbatim. As a result, the wording may appear unusual on some occasions. Photo by Image Party (Creative Commons 0 License). Text superimposed.


Ministers from 4 states demand comprehensive overhaul of “Prostitutes Protection Law”

Ulle SchauwsUlle Schauws MdB (Member of the German Parliament), Green Party*

Wo Schutz drauf steht, muss Schutz drin sein*

*[lit. Where it says protection on the outside, protection must be included]

+++ Update: Click here to download the position paper as PDF. This resource is in German. +++

The Green Party believes that the “Prostitutes Protection Law”, submitted by Minister for Family Affairs Manuela Schwesig (Social Democrats), will be subject to approval by the Bundesrat, the upper house of the German parliament. The reason for that is that the Länder (states) are supposed to carry out mandatory health consultations for sex workers and will thus shoulder the financial burden of the law. “Federal laws containing duties for Länder to carry out such services require the approval by the Bundesrat”, writes Ulle Schauws, parliamentary spokeswoman for women’s affairs, in a position paper.

Schauws receives support from ministers Barbara Steffens, Irene Alt, Katharina Fegebank, and Anja Stahmann, who are responsible for prostitution-related matters Bremen, Hamburg, North Rhine-Westphalia and Rhineland-Palatinate. They criticise that the bill is expensive and bureaucratic, and required “states and municipalities to establish entirely new departments”. The predicted costs set out by the Ministry for Family Affairs were an underestimation. [Ulle Schauws and] the four ministers demand a comprehensive overhaul of the draft bill, also because it discriminated and stigmatised sex workers, e.g. through mandatory registrations.

Wo Schutz drauf steht, muss Schutz drin sein

Quotes from the Greens‘ position paper

Die Grünen Logo“What the BMFSFJ [Federal Ministry of Family Affairs, Senior Citizens, Women and Youth] presented after the tough negotations in the grand coalition, is a bill that continues the discrimination and stigmatisation of people engaging in prostitution and forces many of them into illegality.”

Die Grünen Logo“According to experts and [representatives of] prostitutes organisations, whom we have heard on this matter, most of this bill is headed into the wrong direction. The recent resolution by Amnesty International underscores yet again that the protection and human rights of prostitutes worldwide must be strengthened. The draft bill, however, considerably worsens the status quo for people engaged in prostitution. Instead of protecting them, it disproportionally puts pressure on prostitutes.”

Die Grünen Logo“Mandatory registrations are intended to particularly benefit victims of human trafficking. What the BMFSFJ ignores here are the experiences made in Austria. The mandatory registration ordinance for prostitutes, as currently used in Vienna, has shown that victims of human trafficking were in fact frequently registered but the authorities couldn’t recognise them. Would victims of human trafficking who are forced into prostitution but remain undetected despite (forced) registrations not believe their exploitation was legal? On the other hand, there are reasonable grounds to assume that a lot of prostitutes would not register and instead work illegally for fear of being forcibly outed, as has happened in Vienna.”

Die Grünen Logo“Within one and the same draft bill, the BMFSFJ conflates two separate regulatory areas, which should be dealt with in two laws: the regulation of occupations in prostitution and the criminal law dealing with human trafficking. The main problem with prosecution of human trafficking cases is victims’ fear to give testimony against their perpetrators. This willingness to give testimony would not at all be strengthened if the concerned persons must face the authorities in the course of registration procedures and are threatened with fines in case of non-compliance. Instead, we Greens demand a simpler procedure [for them] to attain the right of residence, to increase victims’ willingness to give testimony at the courts.”

Die Grünen Logo“All told, the draft is divorced from reality, inconsistent, and misses its actual goal. As a result of this so-called protection law, prostitutes would predominantly experience incapacitation and repression, instead of a strengthening and professionalisation of their occupation. We demand a law that takes the protection of people engaged in prostitution seriously and delivers what it promises. We call on the BMFSFJ to overhaul the draft bill with that in mind.“


*Image: Website of Ulle Schauws (Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Germany License). Source: Green Party. Translation: Matthias Lehmann. Click here to download the position paper as PDF. This resource is in German.


“A tua proteção é opressão” – Mais detalhes sobre a iminente Lei Prostitutas Proteção da Alemanha

Sex workers protest in Nuremberg, August 2014. Photo by Voice4Sexworkers. All Rights Reserved.“Tua proteção é opressão!” A foto é da organização Voice4Sexworkers; foi feita em agosto de 2014 em Nuremberg (Bavária), durante protesto de trabalhadoras sexuais que marcou a visita da ministra da Família, Manuela Schwesig, a um centro de aconselhamento. Schwesig é uma das principais proponentes do endurecimento da lei.

Sobre este texto

O texto abaixo é uma tradução de um acordo entre os partidos Democrata Cristão e Social-Democrata, da coalizão de governo da Alemanha, que estabelece adendos ao documento sobre questões-chaves de agosto de 2014 para uma “Lei de Proteção às Prostitutas” (ProstSchG), que suplementaria a Lei Alemã de Prostituição de 2002 (ProstG).

Inglês Tradução do original alemão por Matthias Lehmann. Research Project Germany (Projeto de Pesquisa Alemanha). Todo esforço foi feito para traduzir os termos legais de maneira que a tradução permanecesse virtualmente literal e ao mesmo tempo inteligível. Os parênteses quadrados no texto incluem classificações e comentários adicionais. Clique aqui para baixar a versão original do documento em alemão. Quaisquer perguntas, comentários ou sugestões de mudanças serão bem-vindos.

Acordo das facções da coalizão sobre a Lei de Proteção às Prostitutas 

Status: 3 de fevereiro de 2015

As regulamentações que se seguem serão acrescentadas ao registro individual obrigatório para todas as prostitutas:

1. Produzir provas de uma consulta médica em um serviço público de saúde será pré-condição para a emissão do documento que confirma o registro de uma prostituta. Será verificado se a emissão de tal prova também poderá ser arranjada por meio de médicos residentes em clínica geral, medicina interna e ginecologia.

2. Os registros precisam ser renovados a cada dois anos, Prova de registro precisa ser apresentada durante controles conduzidos pelas autoridades.

3. Provas de consultas médicas, como listado no item 1, devem ser apresentadas a cada 12 meses; de outra forma, o registro se torna nulo.

4. Operadores de bordéis são obrigados a manter prova das consultas médicas das prostitutas que trabalham em seus estabelecimentos em arquivo.

5. Será verificado como e a que custo o acesso a aconselhamento social nos centros de aconselhamento poderá ser melhorado.

6. O registro tem especialmente a intenção de proteger mulheres [engajadas em prostituição]. Registros serão concedidos pelas autoridades apropriadas. Candidatas precisam aparecer pessoalmente. Será verificado se e até que ponto a presença pessoal em um centro de aconselhamento oficialmente designado pode substituir a presença em autoridades públicas, desde que qualquer mau uso possa ser descartado.

7. Para satisfazer a necessidade de proteção para menores de 21 anos engajadas em prostituição e para melhorar seu acesso a programas de aconselhamento e apoio, a Lei de Proteção às Prostitutas vai incluir provisões específicas.

8. Prostitutas abaixo da idade de 21 anos precisam renovar seus registros anualmente e a prova de consulta médica precisa ser apresentada a cada seis meses.

9. Caso haja alguma indicação, durante o processo de registro, de que uma pessoa não tem a capacidade de discernimento necessária para sua própria proteção ou que terceiros a estão explorando, as autoridades responsáveis vão tomar as medidas requeridas para assegurar a proteção daquela pessoa. Além disso, o certificado de registro poderá ser negado se houver quaisquer indicações de tráfico humano ou de prostituição forçada, de acordo com as provisões já existentes da legislação criminal.

Itens adicionais do acordo:

10. O uso obrigatório de camisinhas será introduzido. Clientes serão penalizados por violações [Ordnungswidrigkeit; contravenções]. Operadores de bordéis são obrigados a manter camisinhas disponíveis. Na eventualidade de uma violação da regulamentação obrigatória sobre camisinhas, aquelas engajadas em prostituição não serão legalmente responsabilizadas.

11. O direito limitado de transferência [Weisungsrecht] de prostitutas será mais detalhado a partir da perspectiva da autodeterminação, por meio de uma emenda à Lei de Prostituição.


Leituras adicionais

Uma lei para proteger a sociedade de um mal imaginário” – inclui a tradução completa do Documento de Questões-Chaves para uma Lei de Proteção para Aquelas que Trabalham em Prostituição (Lei de Proteção às Prostitutas, ProstSchG)

Declaração da organização das trabalhadoras sexuais alemãs BesD (somente em alemão)

“Prostituição, Para Além de um Feminismo Infantilizante” – da professora de Direito Criminal dra. Monika Frommel

“Lei de Moralização“: Propostas de Reforma para a Lei Alemã sobre Prostituição – entrevista com Fabianne Freymadl, porta-voz política da Organização Profissional de Serviços Sexuais e Eróticos (Berufsverband erotische und sexuelle Dienstleistungen, BesD)

“Já existem leis comerciais em vigor para combater a exploração” – entrevista com Theo, da associação de trabalhadores sexuais Hydra e.V.

Mentiras e Verdades sobre a Lei Alemã sobre Prostituição – uma introdução para iniciantes.


Esta tradução apareceu pela primeira vez no Mundo Invisivel. Clique aqui para ler a versão em Inglês de “A tua proteção é opressão”. Inglês Tradução do original alemão por Matthias Lehmann. Muito obrigado a Renato Martins para a versão em Português.

This translation first appeared on Mundo Invisivel (Invisible World). Please click here to read the English version. of “Your protection is oppression” – Further details about Germany’s looming Prostitutes Protection Law. English translation from the Germany original by Matthias Lehmann. Many thanks to Renato Martins for the Portuguese translation.


“Your protection is oppression” – Further details about Germany’s looming Prostitutes Protection Law

Sex workers protest in Nuremberg, August 2014. Photo by Voice4Sexworkers. All Rights Reserved.“Your protection is oppression” – In August 2014, sex workers protested in Nuremberg, Bavaria, as Family Minister Manuela Schwesig, chief proponent of toughening Germany’s prostitution law, visited a counselling centre for sex workers.  | Photo: Voice4Sexworkers

About this text

The below is a translation of an agreement of Germany’s ruling coalition of Christian Democrats and Social Democrats, which sets out additions to the agreed upon key issues paper from August 2014 for a “Prostitutes Protection Law” (ProstSchG), which would supplement the German Prostitution Act of 2002 (ProstG).

Translation by Matthias Lehmann. Research Project Germany. Every effort has been made to translate the legal terms in such a way, that the translation remained virtually verbatim while also being intelligible. Squared parentheses in the text 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.

Agreement of the Coalition Factions about the Prostitutes Protection Law

Status: February 3rd, 2015

The following regulations will be added to the individual mandatory registration for all prostitutes:

  1. Producing evidence of a medical consultation at a public health service shall be a precondition for the issuance of the document confirming a prostitute’s registration. It shall be examined if the issuance of said evidence may also be arranged through resident doctors for general medicine, internal medicine and gynaecology.
  2. Registrations must be renewed every two years. Proof of registration must be produced during controls conducted by the authorities.
  3. Proof of medical consultations, as listed under 1., must be presented every 12 months, otherwise the registration becomes void.
  4. Brothel operators are obligated to have proof of the medical consultations of prostitutes working on their premises on file.
  5. It shall be examined how and at what costs access to social counselling at counselling centres can be improved.
  6. The registration is especially intended to protect women [engaged in prostitution]. Registrations shall be granted at the appropriate authorities. Applicants must appear in person. It shall be examined whether and to what degree a personal appearance at an officially designated counselling centre may replace appearing in person at public authorities, provided that any misuse can be ruled out.
  7. To satisfy the particular need for protection of under 21-year-olds engaged in prostitution and to improve their access to counselling and support programmes, the Prostitutes Protection Law shall include specific provisions.
  8. Prostitutes under the age of 21 must renew their registrations annually and the proof of medical consultation must be presented every 6 months.
  9. Should there be any indication during the registration process that a person does not possess the capacity of discernment necessary for her protection or that third persons are exploiting her, the responsible authorities shall take the required measures to ensure the protection of that person. In addition, the certificate of registration may be denied if there are any indications of human trafficking or forced prostitution, in accordance with already existing criminal law provisions.

Further agreed items:

  1. The mandatory use of condoms will be introduced. Clients shall be penalised for violations [Ordnungswidrigkeit; misdemeanour, administrative offence). Brothel operators are obligated to make condoms available. In the event of a breach of the mandatory condom regulation, those engaged in prostitution [i.e. sex workers] shall not be held legally accountable.
  2. The limited right of direction [Weisungsrecht] of prostitutes shall be further specified from the perspective of self-determination through an amendment of the Prostitution Law.

Further Reading

A law to protect society from an imaginary evil – Includes a full translation of the Key Issues Paper for a Law to Protect Those Working in Prostitution (Prostitutes Protection Law, ProstSchG)

Please click here for a statement by German sex worker organisation BesD [German language only].

Prostitution: Beyond an infantilising feminism – By Criminal Law Professor Dr. Monika Frommel

“Moralising Law”: Reform Proposals for the German Prostitution Act – Interview with Fabienne Freymadl, Political Spokeswoman for the Professional Organisation for Erotic and Sexual Services (Berufsverband erotische und sexuelle Dienstleistungen, BesD)

“There are already trade laws in place to take action against exploitation” – Interview with Theo from sex worker association Hydra e.V.

Lies & Truths about the German Prostitution Act – An Introduction for the Uninitiated


Prostitution: Beyond an infantilising feminism

A relief work in Amsterdam's Oudekerksplein Photo by  J.M. LuijtBronze relief installed by an anonymous artist in Amsterdam’s Oudekerksplein (Old Church’s Square) in the heart of the city’s red-light district of De Wallen. Photo by J.M. Luijt (cc)

Germany’s federal government is currently revising the country’s prostitution regulation. Criminal Law Professor Dr. Monika Frommel notes improvements of the one-sided debate of late, but demands regulations, which respect the reality of sex work.

By Prof. emer. Dr. Monika Frommel

Please note that the copyright for this article lies with Dr. Monika Frommel and is not licensed under a Creative Commons License.

Will federal policy makers during the current legislative period succeed to regulate prostitution adequately? If their efforts would lead to yet another blockade, it would hardly come as a surprise; feminist objections and male privileges – according to the abolitionist women’s movement, active since around 1900 – as well as diverse conservative currents agreeing on the condemnation of the world’s oldest profession as “fornication” have been clashing on the subject of prostitution for over a hundred years.

While conservative double standards ostracise sex workers, feminist perspectives favour criminalising their clients. Although these positions contradict one another, they still unfold – to some extent jointly – destructive effects and, each in their own way, they cement Denkverbote [oppression of opinions that differ from their respective dogmas]. In the statement that prostitution supposedly violates “women’s dignity”, both camps have found a new, seemingly anti-discriminatory language.

In light of this deadlock, it is no wonder then that the Prostitution Act of 2002 (ProstG) was only ever a half-hearted attempt. The ambivalences of the last twelve years have also had tangible negative effects, because on the one hand, the majority of the Länder [German states] circumvented implementing aspects of the new federal law falling within their jurisdictions, and on the other hand, a regulation under the trade law didn’t occur in any of the Länder. Up until this legislative period, there hadn’t even been a debate about different non-criminal regulatory models.

Infantilising Feminism

In the past, this blockade was obscured through ever-new ethics debates and human trafficking campaigns, which, since 1992, originate from a specific understanding of feminism at the EU level. Those are the dark sides of the Nordic women’s movement that the rest of European women have long overlooked. For one, because they do not speak the Nordic languages, and also because they thought, theirs were all noble goals. In northern Europe, however, these two currents combined have resulted in an infantilising feminism.

“The rest of the European women have long overlooked the dark sides of the Nordic women’s movement.”

Its hallmark are campaigns on the international, European and national level. Since so-called “forced prostitution” can only be ascertained in extremely rare cases through criminal law, European institutions regularly demand from respective national legislators to introduce stricter provisions in their criminal law. But since bolstering the fight against “exploitation” and “human trafficking” has failed to yield results, even further legislative amendments are being demanded, and subsequently further national efforts to implement the already expanded EU directive against human trafficking. National legislators, on their part, do not even discuss anymore whether the European objectives can be achieved with such measures, and nobody’s asking if the directive hasn’t already been implemented, but instead they lean towards ‘waving laws through parliament’ that are dubious because they are vague. The rationale is fatalistic: it should be done since Europe demanded measures of this sort.

All this is being accompanied by media campaigns. The last climax occurred in 2013. Back then, the public debate was dominated by shrill and extremely repressive overtones. There was much talk about „forced prostitution“, and calls grew to „punish the punters“ [clients], since after all it were „men“ who were taking advantage of the “plight” of those working in the trade. Therefore, one would have to design measures that render the demand as risky as possible (embarrassing investigations, denunciation). It was also claimed, without supporting evidence, that only a small minority of sex workers was working of free will, while in contrast, the trafficking of adults and children (“children” being defined as any person under 18) was the norm. The empirically unproven assumptions and the downright absurd legal constructs surrounding the concept of “children” already demonstrate what sort of fundamental reservations were stylised here. For the most part, these are conservative prejudices re-formulated in a crooked feminist tone to render them attractive to people with only superficial knowledge of the subject matters.

Amendment of the Prostitution Act

In this legislative period, politicians have begun to shift and support groups to act pragmatically. The excessive polemics of people from one side of the divide has thus resulted in the growing willingness of politicians to see things realistically and argue factually. There is a chance, therefore, that after twelve years of contested and eventually fruitless debates, this legislative period will see an adjustment of the Prostitution Act in line with the changing economic conditions.

To understand the change over recent months, one should first look at the half-heartedly conceived bill from the previous legislative period, which aimed to regulate prostitution through administrative laws. It failed to achieve a majority vote in the Bundesrat [the Upper House of the German Parliament], and for good reason. Back then, Bremen had voted against the bill [together with other states governed by coalition governments of Social Democrats and Greens]. In 2014, the Saarland brought forward a motion for the Bundesrat to adopt a “key issue paper for the regulation of prostitution and brothel-like businesses”. [1]

But the Saarland’s motion was anything but progressive or realistic. It aimed to curb fictitious self-employment and stipulated the so-called “Freierbestrafung” [criminalisation of sex workers’ clients]. The motion was therefore predominantly designed to use administrative and punitive measures. No attention was paid to the working conditions of people in prostitution, especially not to improving these conditions sustainably or to raising the prices for sexual services, which are too low, for the benefit of sex workers, not just the operators. It is promising, therefore, that this decidedly too narrow approach was rejected by a resolution of the Bundesrat on April 11th, 2014.

„It was attempted to paternalistically and maternalistically defend sex workers’ right to self-determination against their will, as it were.”

Now the federal government has to move forward and face the complexity of the imminent reforms. The focal point is a law to “protect prostitutes”. It aims to regulate what had already been discussed as regulation under the trade law, but was never fleshed out or subjected to discussions by the different interest groups, as would have been appropriate. That is because police and the women’s movement were unduly focused on the subject of “human trafficking and forced prostitution”.

This fixation was paradoxical, but over recent months, it has been abandoned. It was paradoxical because both help groups attempted, paternalistically and maternalistically, to defend sex workers’ right to self-determination against their will, as it were, by using criminal and police laws. They did also have sex workers’ rights in mind, but in a completely different sense. What they aim to expand is mainly the right of residence for non-EU citizens who might have become victims of human trafficking and may therefore be potential witnesses [in criminal proceedings]. So they think primarily along the lines of criminal law.

Together with the Länder and municipalities, plans should be developed for a comprehensive range of safe street-based prostitution. The trend in 2013 went the wrong direction. The Dortmund Model – legal street-based prostitution with Verrichtungsboxen [love boxes] – was terminated by the city of Dortmund, unlawfully and unconstitutionally. A sex worker who lodged a complaint won her case at the administrative court of Gelsenkirchen. [2] Should this decision stand, then municipalities will no longer be able to arbitrarily expand [prostitution] off-limit zones, unless in cases, where public order, especially the protection of minors, concretely warrants it, i.e. when actual facts are presented, and not just for exploiting general fears over a sudden influx of migrants who force their woman into prostitution.

Data protection and Self-employment

In the debate over the future law, one aspect will play a central role, which one could almost overlook when first reading the key issues paper by the Ministry of Women’s Affairs. On the one hand it is the question of fair pricing, and on the other hand control under the trade law and the mandatory registration of individual sex workers. As stated in the preliminary key issues paper from August 2014, all sex workers will be subject to mandatory registration, i.e. a duty of disclosure, at the respective municipality. According to this approach, they would receive verification documents, which they would then have to produce upon request.

Obligations of this sort are highly problematic when they extend to all types of activities. If sex workers work at a brothel or comparable business and one wants to prevent circumvention of tax liabilities, shouldn’t it be sufficient for the operator to produce their data so that the sex workers remain anonymous? After all, operators are subject to strict control and are required to keep copies of the sex workers’ permits. So when the operators and their administration are strictly controlled, the data security of the sex workers should not have to be jeopardized.

Converted parking ticket machine in Bonn for tickets to use in tax statement of sex workers Photo by Sir JamesConverted parking ticket machine in Bonn for tickets to use in tax statement of sex workers.
Photo by Sir James (
cc)

Where there is no operator, as in street-based prostitution, it stands to reason to enforce general identity card requirements and flat-rate taxation (via tax machines). There are further concerns: if people work only occasionally at a business, their mandatory registration is problematic since guaranteeing data security in a digitalised world effectively is already uncertain, even in places where it shouldn’t be. [3] Besides, before any standardisation of mandatory registration, it should be clarified whether individual sex workers in fact carry on a trade or rather practice a freelance occupation sui generis [unique in its characteristics]. This is also relevant to the question if they, too – and not just the operator – must pay value-added tax.

“The last twelve years have shown that sex workers want to work independently and do not wish to be forcibly outed.”

There is an even more problematic aspect. Under the programmatic slogan “Prostitution – The Augsburg Model” [4], Helmut Sporer, a speaker for the Bavarian police, together with the public prosecutor’s office in Augsburg, initiated preliminary proceedings against the Colosseum, a brothel-like sauna club, for dirigiste pimping (instruction for those working there to remain naked while in the sauna area) and the failure to pay social security contributions and payroll taxes (§ 266a StGB, German Criminal Code). [A1] In a complaints procedure in 2010, the Higher Regional Court in Munich refused to open proceedings – with reference to the Prostitution Act. [5]

Ever since, the rule applies that “integration into a brothel business” serves as an indicator of non-independent employment (§ 7 Abs. 1 SGB IV, German Social Code) and fictitious self-employment. The defence disproved this assumption with an expert opinion. [6] Since then, attempts have been made to determine by law that integration into a brothel business constitutes an indicator of non-independent employment.

The key issues paper also refers to this debate. Under the heading “Legal relationship between prostitutes and operators”, the actual circumstances are pitted against the wish of sex workers to [be able to] leave at any time. Instead of focusing on the danger of economic exploitation as criterion for operators’ control, fiscal aspects dominate yet again.

Anyone who wants to “protect prostitutes”, to quote the name of the new law, must limit her- or himself to forcing operators to be more transparent, and to allowing those working in their businesses more access to files and counsel. One should not put sex workers into a position in which they rather choose a tolerance model again. After all, the last twelve years have shown that sex workers want to work independently and do not wish to be forcibly outed. It is simply a specific occupation. Occupations differ, one from the other. Blanket criminal proceedings due to the failure to pay social security contributions and payroll taxes offer no protection but create only new repressive powers and substantial regional differences. Both are counterproductive.

About Dr. Monika Frommel

Prof. emer. Dr. Monika Frommel -  Photo usage worldwide

Dr. Monika Frommel is an emeritus criminal law professor. She studied Law at the University of Tübingen and at the Ludwig Maximilians University Munich, where she obtained her doctorate in 1979 and received her habilitation in 1986. Until 2011, she was the director of the Institute of Sanction Law and Criminology at University of Kiel. Since 1990, she is a co-editor of the legal journal Neue Kriminalpolitik. Her current research interests include criminology from a feminist perspective, in particular the reform of sexual criminal law, and ethics in reproductive medicine.

Photo: Usage Worldwide


Footnotes

[1] Bundesrats-Drucksache 71/14, 26.02.2014. [English: Key Issues Paper for a Law to Protect Those Working in Prostitution (Prostitutes Protection Law, ProstSchG)]
[2] Az 16 K 2082/11, 21.03.2013 (noch nicht rechtskräftig).
[3] Sex workers fight against mandatory registrations for good reasons. Although tax authorities normatively guarantee data privacy, it cannot actually be guaranteed, and the Labour Inspectorate doesn’t guarantee it anyway. Therefore, one should forego general mandatory registrations, if there is anyway an operator who can be controlled. It might differ for street-based prostitution, where sex workers cannot rely on the right to data privacy anyway, since they are publicly visible.
[4] Helmut Sporer: „Prostitution – Der Augsburger Weg“ in: Kriminalistik 2010, S. 235-240.
[5] Az 3 Ws 101-105/10, 20.04.2010.
[6] Von Prof. Dr. Dagmar Felix, Hamburg.

[A1] The 2007 Report by the Federal Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act) stated that “operators expressed some uncertainty as to whether and under which conditions the stipulating of place of work, hours of work and prices for certain services went beyond what was legally possible and made them liable to punishment for exploitation of prostitutes (Section 180a(1) Criminal Code) or pimping (Section 181a(1) No. 2 Criminal Code, “dirigiste pimping”). Regional differences in criminal prosecutorial practice added to this uncertainty. For example, the Public Prosecutor‘s Office in Munich in 2003 stated that “the one-sided stipulation of working hours by brothel operators is to be classed as so-called dirigiste pimping within the meaning of the aforementioned provisions and thus to be prosecuted” (cf. S oFFI K I , Section II.2.1.4.4). A decision by the Federal Court of Justice of 1 August 2003 (Federal Court of Justice, ref. 2 StR 186/03; Decision of the Federal Court of Justice 48,314 and NJW 2004, p. 81 ff.) created legal clarity by stating that the operator of a brothel may not stipulate the type and extent of prostitution to be engaged in. However, as long as a prostitute was voluntarily working in a brothel or brothel-like establishment, the mere fact that he/she was integrated into an organisational structure on account of the stipulating of fixed working hours, places of work and prices did not make it punishable (cf. also B.VIII.1 below, and Renzikowski §§ 83, 89).”


Translation by Matthias Lehmann. Research Project Germany. I would like to thank Dr. Frommel for her permission to translate her article, and Frans van Rossum for his excellent comments on the first drafts of this translation. Every effort has been made to translate this article verbatim. As a result, the wording may appear unusual on some occasions. The photos above did not appear in the original article. Footnote A1 was added for further clarification.

The German original of this article was first published as “Prostitution: Jenseits des Bevormundungsfeminismus” at NovoArgumente (November 24th, 2014). Please note that the copyright for this article lies with Dr. Monika Frommel and is not licensed under a Creative Commons License.


Further Reading

A law to protect society from an imaginary evil – Includes a full translation of the Key Issues Paper for a Law to Protect Those Working in Prostitution (Prostitutes Protection Law, ProstSchG)

“Moralising Law”: Reform Proposals for the German Prostitution Act – Interview with Fabienne Freymadl, Political Spokeswoman 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)

Lies & Truths about the German Prostitution Act – An Introduction for the Uninitiated

“I thought it was all different!” – Video highlights from a symposium about the German Prostitution Act in December 2013, where Dr. Frommel was among the panellists


Il Ministro Barbara Steffens: “Non si può vietare la prostituzione – Rafforzare i diritti dei lavoratori del sesso”

Roundtable Prostitution hands over Final Report © MGEPA NRW 2014Claudia Zimmermann-Schwartz (a destra), Presidente della Tavola Rotonda sulla prostituzione in Nord Reno-Westfalia (NRW), consegna la Relazione Finale al Ministro Barbara Steffens (a sinistra).
© MGEPA NRW 2014 [Il Nord Reno-Westfalia è lo Stato più popoloso della Germania e il quarto per estensione.]

Please click here to read the English version of “Roundtable Prostitution presents Final Report”.

La Tavola Rotonda sulla Prostituzione ha presentato la Relazione Finale

Comunicato Stampa

Il Ministero della Salute, Cura,Uguaglianza e Terza Eta’ (MGEPA) del Nord Reno-Westfalia ha annunciato:

Con la consegna della Relazione Finale al Ministro Barbara Steffens, la “Tavola Rotonda sulla Prostituzione in Nord Reno-Westfalia” ha concluso il suo mandato. In quasi 100 pagine, il Rapporto documenta un’analisi completa della materia e riassume le posizioni su questioni politicamente controverse. Il Rapporto fa luce sulle diverse forme di prostituzione e presta particolare attenzione ai cambiamenti dinamici del mercato.

Un quadro senza precedenti a livello nazionale

“Non si può proibire la prostituzione e la prostituzione non è un lavoro come un altro. Coloro che vogliono svolgere questo lavoro devono essere in grado di farlo in condizioni costituzionali e umane”, ha dichiarato il ministro Steffens l’8 ottobre 2014 dopo aver ricevuto il Rapporto. “In un modo senza precedenti a livello nazionale, la Tavola Rotonda sulla Prostituzione ha raccolto un enorme patrimonio di conoscenze che fornirà un prezioso impulso, non solo per l’attuale dibattito sulla riforma della legge sulla prostituzione. Una cosa è chiara: i problemi esistenti non saranno risolti dalla stigmatizzazione e dai divieti. E’ necessaria, invece, un’analisi differenziata”, ha aggiunto Steffens.

“Innumerevoli miti, luoghi comuni e pregiudizi sulla prostituzione, che tutti abbiamo nella nostra testa, ostacolano un approccio imparziale alla materia. Seguendo la Tavola Rotonda abbiamo cominciato ad esserne consapevoli”, ha detto Claudia Zimmermann-Schwartz, presidente della Tavola Rotonda. “Inizialmente, alla presenza del Capo del Dipartimento per gli Affari delle Donne, non è stato facile ascoltare gli operatori di bordelli o anche solo invitare i clienti [dei lavoratori del sesso] per le sessioni. Ma il nostro obiettivo era quello di condurre un dibattito etico basato sulla conoscenza, e di parlare con la gente del mondo della prostituzione,e non su di loro”, ha aggiunto Zimmermann-Schwartz .

14 sessioni e oltre 70 esperti

La Tavola Rotonda è nata a seguito di una delibera del Governo dello Stato [del Nord Reno-Vestfalia], adottata il 14 dicembre 2010. Nel corso di 14 sessioni sono stati ascoltati oltre 70 esperti. Il quadro era composto da personale dei ministeri competenti, dei centri di consulenza,dai Consigli locali e da due prostitute. (more…)


Minister Barbara Steffens: “One cannot prohibit prostitution – Strengthening sex workers’ rights”

Roundtable Prostitution hands over Final Report © MGEPA NRW 2014Claudia Zimmermann-Schwartz (right), Chairwoman of the Roundtable Prostitution in North Rhine-Westphalia (NRW), hands over the final report to Minister Barbara Steffens (left) © MGEPA NRW 2014 [North Rhine-Westphalia is the most populous state of Germany, as well as the fourth largest by area.]

Clicca qui per leggere la versione italiana di “La Tavola Rotonda sulla Prostituzione ha presentato la Relazione Finale”.

Roundtable Prostitution presents Final Report

+++ Update: Report now available in English (click here) +++

Press Release

The Ministry of Health, Equalities, Care and Ageing (MGEPA) of North Rhine-Westphalia announces:

With the handover of its final report to Minister Barbara Steffens, the “Roundtable Prostitution NRW” has concluded its operation. On nearly 100 pages, the report documents a comprehensive analysis of the subject matter and includes positions to politically contentious issues, as well as recommendations. In doing so, the report sheds light on diverse forms of prostitution and pays particular attention to the dynamic changes of the market.

A nationwide unprecedented panel

“One cannot prohibit prostitution, and prostitution is not a job like any other. But those who wish to perform this job, must be able to do so under constitutional and humane conditions”, declared Minister Steffens on 8th October, 2014, as she received the report. “In a nationwide unprecedented manner, the Roundtable Prostitution has gathered an enormous wealth of knowledge that will provide an invaluable impetus, not only for the current debate about a reform of the Prostitution Act. This is clear: existing problems will not be solved by stigmatisation and prohibitions. What’s necessary is a differentiated analysis”, Steffens added.

“Countless myths, clichés and prejudices about prostitution, which we all have in our heads, stand in the way of an unbiased approach of the subject matter. At the Roundtable, we became only gradually aware of that”, said Claudia Zimmermann-Schwartz, chairwoman of the Roundtable. “Initially, being the Departmental Head for Women’s Affairs, it wasn’t easy to listen to brothel operators or to also invite [sex workers’] clients to the sessions. But our aim was to conduct a knowledge-based, ethical debate, and to speak with people, not about them”, Zimmermann-Schwartz added.

14 sessions and over 70 experts

The Roundtable was created following a resolution of the state government [of North Rhine-Westphalia], adopted on 14th December, 2010. During 14 sessions, over 70 experts were heard. The panel comprised staff from the responsible ministries, counselling centres, local councils, as well as two prostitutes.

From the report:

  • Due to its visibility, street prostitution determines the public’s perception of prostitution, but according to estimates by experts, only about ten percent of all prostitutes work in this segment. Laufhäuser [walk through brothels], Eros Centres, S/M studios, bars, clubs, Anbahnungslokale [bars facilitating encounters], porn cinemas, saunas or massage parlours are also locations for prostitution just as other businesses premises – but private apartments account for over 50 percent.
  • All experts who were heard unanimously stated that the total number of prostitutes in North Rhine-Westphalia cannot be authoritatively ascertained – estimates range between 25,000 and 45,000.
  • Although the general view assumes prostitutes to be female and clients to be male, male-to-male prostitution (an estimated 10 percent) or the prostitution of transsexual people (an estimated 6 percent) are in demand to a not inconsiderable extent.
  • The Roundtable found no evidence for the thesis that human trafficking for the purpose of sexual exploitation increased after [the adoption of] the Federal Prostitution Act of 2002.
  • What is necessary is the regulation of brothels and brothel-like businesses in order to secure the reliability of operators as well as a minimum standard of working conditions and hygiene. Required are regulations that take into account the rapid changes of the services on offer. Regulations must target these different business concepts and particularly put a stop to exploitative forms of prostitution, as well as those which endanger [people’s] sexual self-determination.
  • The most important factor for the dynamic changes of the market is the internet. Not only has advertising for sexual services predominantly shifted to the net, negotiating and brokering also take place virtually. The services on offer continuously expand, they become more sophisticated and more transparent. Next to internet platforms catering to regions and specific types, the number of interactive forums is increasing, in which direct communication takes place. Advertisers create content themselves in the form of chats, sex cams, photos and texts, with demands by users steadily increasing; in many cases, some involvement takes place (e.g. in the form of so-called “auctions”, evaluation tools, etc).
  • Municipal concepts to create spaces, in which street prostitution can be practised while safeguarding concerns of of others, are necessary, in which the interests of all involved parties (residents, prostitutes, clients, regulatory and health authorities, police, counselling centres) are represented. [*]
  • One of the chief obstacles to practise prostitution in a professional and safe manner lies in the still existing strong stigmatisation. [*] Prostitutes still find themselves forced to lead double lives; there is a lack of trust in the police and the authorities. It is not unusual that preexisting social relations are discontinued, creating the frequently cited “pull of the milieu” [barrier to exit]. Required is a differentiated public debate about prostitution that accepts the decisions of people to engage in prostitution.
  • The Roundtable strongly rejects restrictive measures, such as compulsory health checks or a law prescribing mandatory condom use, since these are legally problematic, unsuitable, stigmatising and even counterproductive. Instead, the Roundtable deems it necessary to offer preventative measures that fit the needs of specific target groups, which also integrate the environment, including the clients. Outreach work and open consultation hours of health authorities, as they are already successfully offered in some places, would also be useful.

[1] The Roundtable Prostition. Final Report – Mandate, Challenges and Outcomes [English] (new)

[2] The Roundtable Prostition. Final Report – Mandate, Challenges and Outcomes [German]

The final report can also be ordered or downloaded at www.mgepa.nrw.de/publikationen. Please enter the order number 148. Orders by telephone are possible in North Rhine-Westphalia under the number 0211 – 837 1001. Please cite the publication number.


This press release was published on October 8th, 2014, by the Ministry of Health, Equalities, Care and Ageing (MGEPA) of North Rhine-Westphalia. Please note that the copyright for the press release and the photo lies with MGEPA and is not licensed under a Creative Commons License.

Translation by Matthias Lehmann. Research Project Germany. Every effort has been made to translate the somewhat complex language in such a way that the translation remained virtually verbatim. As a result, the wording may appear unusual on some occasions. Since this is a government document, the term “prostitute” was left unchanged, whereas usually, this author would use the term “sex worker”. Notes in square brackets were added for clarification. Asterisks indicate that passages were slightly shortened for clarity. Click here to view the German original. Any questions or comments are welcome.


La Legge Tedesca sulla Prostituzione: Bugie e Verità

Please click here to read the English version of “Lies & Truths about the German Prostitution Act”. Se il vous plaît cliquez ici pour lire la version française de “Mensonges & Vérités autour de la Loi Allemande sur la Prostitution”. Моля, кликнете тук, за да прочетете българската версия на “лъжи и истини за германския закон за проституцията”.

Un’introduzione per chi non lo sapesse

Stamp from Deutsche Post AG from 2001, Pinocchio Source Wiki CommonsI miti che circolano intorno alla legge sulla prostituzione tedesca sono un perfetto esempio di come le bugie e le falsità vengano accettate come “verità” quando siano continuamente ripetute. Tenuto conto che vari politici e attivisti anti-prostituzione in molti paesi spesso citano la Germania come esempio di fallimento della legalizzazione del lavoro sessuale, esamineremo qui alcune di queste più comuni false affermazioni. L’elenco non vuole essere esaustivo e i bene informati non vi troveranno nulla di nuovo. Il suo unico scopo è quello di ribadire le contraddizioni che si generano dalle idee sbagliate, che purtroppo continuano ad essere sistematicamente ripetute dai media.

Bugia: Il lavoro sessuale è stato legalizzato in Germania nel 2002.

Verità: Il lavoro sessuale è stato in condizione di legalità in Germania per la maggior parte del XX° secolo. L’obiettivo della legge sulla prostituzione del 2002 (ProstG) era quello di migliorare i diritti sociali e giuridici dei lavoratori del sesso. Con la riforma è stata inoltre abolita la nozione preesistente per la quale la prostituzione costituiva una violazione della pubblica moralità. (more…)


Mensonges & Vérités autour de la Loi Allemande sur la Prostitution

Please click here to read the English version of “Lies & Truths about the German Prostitution Act”. Clicca qui per leggere la versione italiana di “La Legge Tedesca sulla Prostituzione: Bugie e Verità”. Моля, кликнете тук, за да прочетете българската версия на “лъжи и истини за германския закон за проституцията”.

Une introduction pour les non-initiés

Stamp from Deutsche Post AG from 2001, Pinocchio Source Wiki CommonsLes mythes qui circulent sur ​​la législation allemande sur la prostitution sont un parfait exemple de la façon dont les mensonges et les idées fausses deviennent acceptées comme des «vérités», si seulement elles se répètent assez souvent. Puisque les acteurs politiques et les militants anti-prostitution de nombreux pays citent fréquemment l’Allemagne comme un exemple où la légalisation du travail du sexe a prétendument échoué, la liste suivante se penchera sur certaines des affirmations communes faites au sujet de la loi allemande sur la prostitution de 2002. La liste est en aucun cas exhaustive et les lecteurs bien informés ne trouveront rien de nouveau. Son seul but est de réaffirmer les preuves pour contredire les idées reçues, qui trouvent malheureusement leur chemin dans d’innombrables rapports de médias encore et encore.

Mensonge: Le travail du sexe a été légalisé en Allemagne en 2002.

Vérité: Le travail du sexe a été légal en Allemagne pour la plupart du 20e siècle. L’objectif de la loi sur la prostitution de 2002 (ProstG) était d’améliorer les droits sociaux et juridiques des travailleurSEs du sexe. Elle a également supprimé la notion préexistante que la prostitution constituait une violation aux mœurs publiques. (more…)


Lies & Truths about the German Prostitution Act

An Introduction for the Uninitiated

Stamp from Deutsche Post AG from 2001, Pinocchio Source Wiki CommonsThe myths that circulate about German prostitution legislation are a perfect example of how lies and misconceptions become accepted as “truths” if only they are repeated often enough. Since political actors and anti-prostitution activists in many countries frequently cite Germany as an example where the legalisation of sex work has allegedly failed, the following list will look at some of the common claims made about the German Prostitution Act of 2002. The list is by no means exhaustive and well-informed readers will find nothing new in it. Its sole purpose is to reiterate evidence to contradict the common misconceptions, which sadly find their way into countless media reports time and time again.

+++ Please note: This article is about the Prostitution Act (ProstG) of 2002. For information about the so-called “Prostitutes Protection Act” (ProstSchG) of 2017, please read the briefing paper “Professed Protection, Pointless Provisions – Overview of the German Prostitutes Protection Act” by the International Committee on the Rights of Sex Workers in Europe (ICRSE).  +++

Lie: Sex work was legalised in Germany in 2002.

Truth: Sex work was legal in Germany for most of the 20th century. The goal of the Prostitution Act of 2002 (ProstG) was to improve the social and legal rights of sex workers. It also removed the previously existing notion that prostitution constituted a violation of public mores.

Lie: Pimping is legal in Germany.

Truth: The exploitation of sex workers and pimping, i.e. “controlling prostitution” (Zuhälterei), are illegal in Germany under Section 180a and 181a of the German Criminal Code (StGB) and punishable by imprisonment of up to three and five years respectively.

+++ Please note: The above lie was added later and is not included in versions of this article in other languages. +++

Lie: The Prostitution Act gives brothel operators the right to determine (Weisungsrecht) which clients sex workers must accept and what sexual practices sex workers must perform.

Truth: Brothel operators only have a restricted right of direction (managerial authority; eingeschränktes Weisungsrecht) which allows them to assign the work place or schedule only.

Lie: Only 44 sex workers in Germany are registered with the national insurance scheme.

Truth: The German government’s evaluation report showed that 86.9% of the sex workers who participated in the survey had health insurance. While a lesser number paid old-age pension contributions, this was connected to factors like the length of time sex workers intended to stay in the industry or individuals’ needs for security.

And where those ’44’ are concerned: as the evaluation report by the German government outlined, sex workers consider as main obstacles the uncertainty whether or not labour contracts would actually provide any social and material benefits for them, and to what extent they might be faced with unexpected disadvantages. Only a very small proportion definitely wanted a contract of employment, but the majority more or less rejected the idea of a contract. They feared that if they concluded a contract of employment, they would lose their sexual autonomy as well as their ability to themselves determine when and where they want to work. Other obstacles were the fear that they would lose their anonymity and the negative social consequences that would possibly arise if their line of work was revealed. Thus, sex workers do not disclose their occupation to insurance companies or authorities but instead register with other occupations.

Lie: Job Centres can force job seekers to take up sex work.

Truth: Conditions for taking on “reasonable work” do not mean that the unemployed will be placed in jobs or measures to integrate them in prostitution. Media reports suggesting otherwise are incorrect.

Lie: Human trafficking for sexual exploitation has increased since the adoption of the Prostitution Act.

Truth: Despite greater activities by the police, the annually compiled situation reports by the Federal Criminal Police Office (BKA) show no significant increase in the number of persons trafficked for the purpose of sexual exploitation that would indicate an expansion of the phenomenon as a result of the prostitution law taking effect.

In the year 2003, one year after the adoption of the Prostitution Act, the BKA registered altogether 1,235 persons presumed to have been trafficked for the purpose of sexual exploitation, an isolated spike in numbers compared to previous and following years. Ever since 2004, the annual average is 654: 926 cases (2000), 987 (2001), 811 (2002), 1,235 (2003), 972 (2004), 642 (2005), 775 (2006), 689 (2007), 676 (2008), 710 (2009), 610 (2010), 640 (2011), 612 (2012), 542 (2013), 557 (2014), and 416 in 2015.

Persons presumed to have been trafficked for the purpose of sexual exploitation

Persons presumed to have been trafficked for the purpose of sexual exploitation
Source: Situation Reports by the Federal Criminal Police Office (BKA), 2000-2015

Although figures fluctuate from year to year, it still represents a certifiable decline of over 66% since 2003. As the government already stated in 2013, from a quantitative viewpoint, the risk potential of human trafficking for the purpose of sexual exploitation in Germany is limited. What did increase, however, is the number of media reports about human trafficking, and thus the impression that the phenomenon itself increased. In this context, one should also note the police’s high clearance rates of crimes against sexual self-determination (rape and sexual coercion) and against life (murder and manslaughter), the former consistently above 80%, the latter around 95% or higher (BKA data from 2008 to 2015).

+++ Please note: The above paragraphs have been updated to include the most recent available data. Versions of this article in other languages do not include this update. +++

Lie: The German Prostitution Act has failed.

Truth: The Prostitution Act of 2002 has not been evenly implemented in Germany’s federal states and more often than not is circumvented by using by-laws. As Rebecca Pates states, “the [Prostitution Act] might in fact have the distinction of being the only federal law intentionally not implemented by Germany’s public administration”. A law that isn’t implemented cannot fail. QED.


Please note: there is certainly further evidence to counter the above claims. For the purpose of this rather general introduction, sources were limited to the government’s evaluation report, the annual reports by the Federal Crime Office, one academic article, and one blog article. Please leave a comment below if you wish to know more about any of the above or any additional points.


Se il vous plaît cliquez ici pour lire la version française de “Mensonges & Vérités autour de la Loi Allemande sur la Prostitution”. Clicca qui per leggere la versione italiana di “La Legge Tedesca sulla Prostituzione: Bugie e Verità”. Моля, кликнете тук, за да прочетете българската версия на “лъжи и истини за германския закон за проституцията”.


Recommended Reading

Roundtable Prostitution presents Final Report

Interview with Heike Rabe, Policy Advisor at the German Institute for Human Rights


Black is the new Red*

Subject of dispute: Brothel in Dachau (Photo: dpa)

Subject of dispute: Brothel in Dachau (Photo: dpa)

The below is a summary of an article by Benjamin Emonts that appeared in German daily Süddeutsche Zeitung, provided here as an update to the previous post Cities lose legal battles against prostitution businesses. (*Black is the customary colour of Germany’s two main conservative parties, the Christian Democratic Union and the Christian Social Union.)

Conservatives involved in construction of brothel in Dachau

For several months, questions were raised over the construction of a nudist club (FKK-Club) in East Dachau, Bavaria, which will include rooms where sex workers can offer sexual services. It has now come to light that local Conservative politicians and elected representatives from the Christian Social Union (CSU) are in fact involved in its construction: developer and acting city councillor Wolfgang Moll; electrician and previous city councillor Helmut Erhorn; and architect and CSU candidate for the city council Heidi Lewald. Their involvement became known after repeated requests by deputy mayor Kai Kühnel over missing project signs at the site. Although they have now been mounted, they remain out of sight at a hidden entrance door of the brothel at Ohmstraße 5.

Architect Heidi Lewald confirmed to Süddeutsche Zeitung that she knew all along that the building was going to be used as a brothel. “It was just another job”, she said, before she abruptly ended the telephone conversation.

Previous CSU city councillor Helmut Erhorn said, “What’s wrong with it? In my view, the building will be terrific: a beautiful sauna area, a whirlpool to relax – it’s gonna be the most beautiful establishment in Dachau, if they let us build it.”

In light of the ongoing public debate about the brothel, it remains unclear why the local politicians didn’t make their stakes in the project known earlier. According to Helmut Erhorn, the city knew about the brothel even before he and his partners did. “The city knew from the very beginning what was going to be built there.”

According to deputy mayor Kai Kühnel, he had requested information about the alleged construction of the brothel several times during meetings of the planning and building committee, in the presence of city councillor Wolfgang Moll.

Moll told the Süddeutsche Zeitung: “The speculations circled around the construction of a [new] brothel spanning several thousand square metres. That is why I didn’t make the connection to the site at Ohmstraße 5.” The construction was “just another job”, he said, which was approved by the city. “I am not obliged to shout it from the rooftops. The red light milieu is a sensitive subject. I am aware that one needs to be careful with the subject in our commune.”

The reconstruction of the existing brothel at Ohmstraße 5 was approved by the city of Dachau, confirms the city’s head of urban development Michael Simon, who, like Moll, didn’t believe the discussions were connected to the construction at Ohmstraße 5 but with a project of a much larger magnitude. He felt, that no further discussions were necessary.

Dachau fights against brothels

The city of Dachau, however, just fought a legal battle against the constructors of the building, as it feared that the operators could use more than the five approved rooms for prostitution. The city is concerned that this could lead to a “trading down effect” for the entire business area, where six brothels exist already.

Subsequently, the city tried to demand that the operators were only permitted to use the five approved rooms for prostitution. The administrative court rejected the demand, as it found that the city was not permitted to use planning laws to dictate how many rooms the operators may or may not use for prostitution.

Deputy mayor Kai Kühnel commented: “Everybody has to make a decision how to earn their money.” He described the fact that as many as three politicians from the Christian Social Union were involved in the project as “a little amusing”. Christa Keimel, faction leader of the local chapter of the Social Democrats, felt the story left an aftertaste. “The involvement of the CSU amazes me somewhat.”

So far, the local chapter of the CSU hasn’t discussed the fact that three of its members are involved in the construction of a brothel. That could still change, however. Local chairman Tobias Stephan commented, if members felt the need for it, the matter could be discussed.


Cities lose legal battles against prostitution businesses

1537 Braunschweiger Monogrammist Bordellszene Brothel scene (1537 Brunswick Monogrammist, Source: Gemäldegalerie Berlin)

While sex workers protests against the planned adoption of a new prostitution law claiming to protect them, two legal cases highlight continued attempts of municipal governments to ignore existing prostitution legislation, more than ten years after its introduction.

An administrative court in Minden in the German state of North Rhine-Westphalia has issued a verdict against the use of prostitution-free zones, mirroring a decision in 2013 by an administrative court in the state of Hesse, while an administrative court in Dachau in the state of Bavaria ruled against objections by the city’s public construction authority, which had attempted to bar two operators from running a fetish studio and a wellness centre, the latter of which will include five rooms where sex workers can offer sexual services.

As regional daily Neue Westfälische reports, various municipalities in Ostwestfalen-Lippe, a region in North Rhine-Westphalia, will no longer be able to use off-limit zones to drive away prostitution, as the decision by the Minden Administrative Court calls their validity into question. The district council of Detmold is now faced with having to adjust its decades-old ordinances to the new legal norms and changed moral values.

In its decision, the court closely examined a case in the city of Oerlinghausen, where an operator had opened a tantric massage parlour in November 2013. As the city believed this to be a venue where sexual services were offered, she was barred from operating her business. The city referred hereby to an ordinance to protect youth and public morals.

According to the Minden Administrative Court, such a general prohibition of prostitution is no longer permissible as it violates basic law by unduly limiting the freedom to choose one’s occupation. The court found that the Prostitution Act of 2002 must take precedence here, which defined prostitution as an act of service provision and removed the previously existing notion that prostitution constituted a violation of public mores.

Even the Federal Constitutional Court holds that off-limit zones were only justified in case that the “milieu” would cause disturbances of schools, kindergartens or churches, none of which applied in this particular case, according to the Minden Administrative Court. The city of Oerlinghausen was ordered to pay all procedural costs.

A decision in the actual case was no longer necessary, however, since the operator of the massage parlour no longer wishes to run the business in Oerlinghausen. A decision on whether or not sexual services were actually offered there was not made. The operator and her attorney Burkhard Zurheide had always maintained that hadn’t been the case. Zurheide sees the verdict as success: “The district council should now eliminate its old off-limit zone ordinances or at the very least adjust them to the new legal norms”.

The ruling by the Dachau Administrative Court is still subject to appeal, but in both aforementioned cases, the court found that the operators had fulfilled construction and planning regulations. The two cases can be seen as typical examples how municipal governments attempt to circumvent the prostitution law by imposing arbitrary requirements to prevent prostitution-related businesses from operating within their jursidictions.


A law to protect society from an imaginary evil

“It's

“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) [1]

Status: August 14th, 2014

With the introduction of the Prostitution Act of 2002 (ProstG) by the Red-Green federal government [2] 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 [3], such as the exclusion from the social insurance system. The evaluation of the law in 2007 [4] 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. [5] 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 [6]
  • 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) [7]; 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. [11]

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). [12]

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) [13] 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 [14]

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. [15]

  • 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 [16], 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 [17])

  • 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. [18]
  • 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.


“Infection PROTECTION Law, Emissions PROTECTION Law, Prostitutes PROTECTION Law...do you get it know who is supposed to be protected from whom?” Translation of a tweet by Voice4Sexworkers, a blog by and for sex workers. “Prostitutes PROTECTION Law, Infections PROTECTION Law, Emissions PROTECTION Law, …
Do you get it now who is supposed to be protected from whom?”


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 [19] (Withholding and misappropriation of remuneration), for the failure to pay [insurance] contributions.

Municipal development and control instruments shall remain in force without limitation [20]

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 [21], 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 [22]), 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. [23]

On the basis of a preliminary assessment, the new law does not require the approval of the Bundesrat. [24]

Entry into force

The law shall be published in the Federal Gazette [25] 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.

Evaluation

An evaluation of the law after three years shall be written into the law.


Further reading

“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


Footnotes

[1] Original: „Gesetz zum Schutz der in der Prostitution Tätigen/Prostituiertenschutzgesetz (ProstSchG)“; Germany’s current prostitution law is called „Prostitutionsgesetz (ProstG)“
[2] the then ruling coalition of Social Democrats and the Greens
[3] The concerned here refers to sex workers, not their clients.
[4] 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
[5] Alternative translation: “pimping”
[6] Original: “gewerblich ausgeübte Prostitution”
[7] Original: “Prostitutionsstätten”
[8] Literal translation: statutory permission requirement
[9] 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.
[10] Original: “Angebote sexueller Dienstleistungen”
[11] Original: “Gewerbeausprägungen“
[12] It is important to note that this passage is ambiguous. “Inhaber” can refer either to registered proprietors or occupants of apartments.
[13] GewO: Trade Regulation Act
[14] Alternative translation: “trustworthiness”; likewise, where this document mentions “unreliability” or “unreliable”, the alternative translation would be “untrustworthiness” or “untrustworthy”.
[15] 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.
[16] Upper House of the German Parliament
[17] 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.
[18] 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.
[19] StGB: Criminal Code
[20] Original: “Kommunale Gestaltungs‐ und Steuerungsinstrumente bleiben uneingeschränkt bestehen“
[21] Introductory Law to the Criminal Code
[22] Original: “Stammgesetz”
[23] Original: “Änderungen bestehender Gesetze können im Wege einer Ausgestaltung als Artikelgesetz in zusätzlichen Artikeln geregelt werden.“
[24] 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.
[25] Bundesgesetzblatt


“Moralising Law”: Reform Proposals for the German Prostitution Act

Sex workers protest in front of German parliament in June 2013. Source: BesD

Sex workers protest in front of German parliament in June 2013. Source: BesD

Interview with Fabienne Freymadl, Political Spokeswomen for the Professional Organisation for Erotic and Sexual Services (Berufsverband erotische und sexuelle Dienstleistungen, BesD)

In an effort to curb “forced prostitution”*, the ruling coalition of Conservatives and Social Democrats has agreed on basic principles to reform the German Prostitution Act of 2002. In an interview by Barbara Dribbusch for German daily die tageszeitung, Fabienne Freymadl, political spokeswoman for sex worker organisation BesD, warns against a moralising law and explains why the reforms will harm sex workers* and fail to accomplish their alleged goal.

Please note that the copyright for this interview lies with taz.de and is not licensed under a Creative Commons License.

Ban on Flat Rate Sex and Gang Bang Parties

In the future, sex workers will have to register with the authorities, the owners of brothels will have to submit to reliability checks, and flat rate sex and gang bang parties are going to be outlawed. These measures are part of the planned reform of Germany’s Prostitution Act, which members of the ruling coalition agreed upon on Thursday. Sex workers, however, reject the plans.

Manuela Schwesig, Federal Minister for Family Affairs (Social Democrats), declared that the new regulations meant that for the first time, there would be “clear rules for legal prostitution in Germany that will protect the women”.

Social Democrats (SPD) and Conservatives (CDU/CSU) still negotiate on other items, including a minimum age for sex workers of 21. Conservatives want to raise the minimum age for sex workers from 18 to 21.

Among the already agreed items is the introduction of binding obligations for sex workers to register. Sex workers will then have to register and deregister with municipal authorities. Federal states will have to decide which local authority will be responsible, said a spokeswoman of the Federal Ministry for Women. [This is actually the same as the Ministry for Family Affairs. The full name of the ministry is ‘Federal Ministry of Family Affairs, Senior Citizens, Women and Youth’. A/N]

A law demanding mandatory registration would harm the women, criticised Fabienne Freymadl, political spokeswoman of the Professional Organisation for Erotic and Sexual Services (BesD), where sex workers in Germany are organised.

Rights Not Rescue! - Matt Lemon Photography. All Rights Reserved.

Rights Not Rescue! – Source: Matt Lemon Photography. All Rights Reserved.

Fear of mandatory registration

Especially sex workers who work on a part-time basis do not want to register due to the risk that their data may be passed on to third parties and women could be outed for their stigmatised profession, said Freymadl. If women experienced assaults, they could henceforward not report them to the police anymore, if they weren’t registered with the authorities.

The BesD is also critical of the planned “statutory permission requirements” and “reliability checks” for brothel owners. According to the new regulations, brothel owners with criminal records can be barred from operating brothels. However, an exemption from the statutory permission requirements is planned, if individual persons sell sex in private apartments.

It remained unclear, however, what actually was defined as “brothel”, said Freymadl. An apartment rented by three women to use for sex work could potentially be labelled as a brothel, too.

Outlawing flat rate sex and so-called gang bang parties showed how moralising the debate actually was, the association’s spokeswoman added. Outlawing certain business models and practices, which the public perceived as particularly demeaning, contributed nothing to fight “forced prostitution”, since criminals wouldn’t heed such bans anyway.

Flat rate offers are a “publicity ploy”

So-called flat rate sex meant that men paid a flat fee and could then stay several hours at a brothel and have sex as many times as they wanted to. But that’s just a “publicity ploy”, said Freymadl. Usually, those men managed only one or two sexual encounters that led to an orgasm. Most men couldn’t go on after that. This business model had the advantage for women in the brothel that they could better plan what income to expect, compared to each customer paying for each sexual encounter separately.

So-called gang bang parties also evoked a false impression among the public, according to the association’s spokeswoman. At gang bang parties, a sex worker has oral, vaginal or anal sex with several men simultaneously, and with that, sex workers earned a relatively high amount of money in a relatively short amount of time. The public considers this practice as demeaning for women.

But if such encounters were voluntary, they represented merely a particular practice, emphasised Freymadl. It wouldn’t make sense to limit the complexity in the business to fight “forced prostitution”, which fundamentally, and independent from whatever practice, represented a grave human rights violation and a criminal offence.

Sex work as Freelance Occupation

The trade association of sex workers demands to recognise sex work as a normal freelance occupation and by doing so, to abolish the prohibition of sex work in off-limit zones.

The remaining points of contention regarding the reform of the prostitution law are to be clarified in the early fall. The plan of the Conservatives to punish customers of “forced prostitutes” remains controversial. Critics fear that even less customers would then provide tip-offs to the police about “forced prostitution”, should they involuntarily encounter such women.


BesD Logo The Professional Organisation for Erotic and Sexual Services (Berufsverband erotische und sexuelle Dienstleistungen, BesD) is a registered organisation with its headquarters in Berlin.

The organisation pursues the aims of: improving the working and living conditions of sex workers, providing information and explanations about the different aspects of sex work, imparting a realistic picture of sex work and acting against the discrimination and criminalisation of those who are involved in sex work. Click here to learn more.


The interview was conducted by Barbara Dribbusch for taz.de, a left-leaning German daily. Please note that the copyright for this interview lies with taz.de and is not licensed under a Creative Commons License. The photos above did not appear in the original article.

Translation by Matthias Lehmann. Research Project Germany. Every effort has been made to translate this interview verbatim. As a result, the wording may appear unusual on some occasions.

*Terminology

While it could be argued that the terms “prostitution” and “whore” carry a different connotation in German, they were replaced with the terms “sex work” and “sex worker” for this translation, apart from the quote by Manuela Schwesig and the name of the law.  

Since the term “forced prostitution” is contested, this author usually puts it into quotation marks. For this translation, they were added although they did not appear in the original text.

“Forced prostitution doesn’t exist. Prostitution is a voluntary sexual service provision that is based on the premise of mutual consent between adult contractual partners. Without this consent, it is not prostitution but forced sexuality, i.e. sexualised violence.” Press Release by the Federal Task Force Law and Prostitution, March 14th, 2005


A sham of the “forced coalition”

This article first appeared on Research Project Korea in December 2013. As this blog deals with the subject of prostitution regulation in Germany exclusively, I reposted it here to illustrate the outset of the plans of the current ruling coalition of Conservatives and Social Democrats to revise the Prostitution Act of 2002, as laid out in their coalition agreement.Coalition Agreement CDU CSU SPD

Human Trafficking and Prostitution in the coalition agreement

As the fight against „forced prostitution”, or rather human trafficking for the purpose of sexual exploitation* has received much attention by the media and the general public in Germany for quite some time, the subject has now also become an element of the coalition negotiations between the Conservatives (CDU/CSU) and Social Democrats (SPD).

Earlier this year, a law to fight human trafficking and control brothels, introduced by the ruling coalition of Conservatives and Liberals, had failed to pass the Bundesrat, the upper house of the German parliament, as “it didn’t satisfy the declared goal to reduce or rather fight human trafficking as well as to enable the necessary control of brothels (official statement of the Bundesrat), nor did it meet the fundamental concerns of experts.

The coalition agreement between the CDU/CSU (the Conservatives) and SPD (the Social Democrats) suggests that the Conservatives remain unwilling to revise the law as advised by the Bundesrat, whereas the Social Democrats, who passed the German Prostitution Act of 2002 together with the Greens, appear to have given up their resistance and now support the plans of the Conservatives, when only in September, they voted against them at the Bundesrat.

The coalition agreement includes the follow passage about the subject “Human Trafficking, Brothels”.

We want to better protect women from human trafficking and forced prostitution and punish the perpetrators more consistently. In the future, criminal convictions shall no longer collapse due to a lack of victims’ testimonies. In consideration of their contributions to investigations and criminal proceedings and of their personal situations, we will improve victims’ rights of residence and provide them with intensive support, care and counselling.

Furthermore, we will comprehensively revise the Prostitution Act with regards to the regulation of prostitution and improve the legal authority of the police to control brothels. We will take action not only against human traffickers, but also against those who knowingly and willingly take advantage of the plight of victims of human trafficking and forced prostitution and abuse them with sexual acts. In the fight against human trafficking, a stronger focus will be placed on labour exploitation. (Translation by Matthias Lehmann, Please see original text here.)

While at first glance, this may sound as if Angela Merkel was keeping her promise to dedicate some extra attention to the subject, the passage actually holds a number of flaws, which will be illustrated below.

1. Gender bias

“We want to better protect women from human trafficking and forced prostitution”

Male and transgender sex workers are not mentioned, although particularly the latter are disproportionately affected by violent assaults.

More often than not, trans*women have to rely on sex work since the job market doesn’t offer them sufficient alternatives to make a living. Faced with violence, street-based migrant sex workers are faced with particular difficulties, because they cannot turn to the police. All in all, they are even less visible and noticeable than other trans* women. [Source: Gays & Lesbians from Turkey, GLADT e.V.]

2a. No unlimited right of residence for victims of human trafficking

In consideration of their contributions to investigations and criminal proceedings and of their personal situations, we will improve victims’ rights of residence and provide them with intensive support, care and counselling.”

One of the few aspects prostitution proponents and opponents agree upon is that victims of sexual exploitation should be granted an unlimited right of residence regardless of their court testimonies against human traffickers. Quote from the referral to the arbitration panel by the Bundesrat:

Another important component to effectively fight human trafficking is to strengthen victims of human trafficking. The law excluded this part. The framework of his right of residence needs to accommodate the particular needs of the situations in which the persons concerned are in. Limitations to the right of residence, for example, must not prevent the participation in witness protection programmes.

Although the coalition agreement doesn’t exclude the right of residence entirely, the wording remains vague to such an extent, that a real reform is hardly to be expected. The question of the compensation of victims also remains open, since the funding and feasibility of the intensive support, care and counselling are not addressed.

2b. Irrelevance of the testimonies of victims of human trafficking

“In the future, criminal convictions shall no longer collapse due to a lack of victims’ testimonies.”

One of the most dangerous ideas is the proposition to ignore the testimonies of alleged or actual victims of human trafficking during criminal proceedings. While the frustration of law enforcement officers over the difficulty to obtain evidence is comprehensible, the solution can’t be to disregard the testimony or the refusal to give testimony of victims of human trafficking.

This would mean that the testimony of law enforcement officers and third parties would outweigh the testimony of the victims themselves. In light of the xenophobic hypothesis by anti-prostitution activists that poverty in the countries of origin alone is sufficient proof of coercion where migrant sex workers are concerned, it is to be feared that detectives like Helmut Sporer from the criminal investigation department in Augsburg, and others like him, would simply dismiss the testimonies of sex workers.

Sporer, who among other things demands a registration law for prostitutes and the reintroduction of mandatory health checks, shares the view of feminist and anti-prostitution activist Alice Schwarzer, that around 90 per cent of all women in prostitution work “under coercion or due to hardships, or pretend to do it voluntarily”. Judging from this statement, Sporer denies the ability of 90 per cent of all sex workers in Germany to make decisions according to their free will. Combined with the plans to ignore the testimonies of alleged victims of human trafficking in the future, this mentality poses great risks for the situation of self-determined sex workers.

3. Misrepresentation of the control of brothels

“Furthermore, we will comprehensively revise the Prostitution Act with regards to the regulation of prostitution and improve the legal authority of the police to control brothels.”

Despite claims to the contrary from the Conservatives and some Social Democrats, there are already control mechanisms in place and they are extensively used, too.

In the state of Berlin, tax fraud and criminal investigation officers can control any brothel without cause at any given time, as the squad leaders of the ‘AG Rotlicht’ (Task Force “Red Light”) of the criminal investigation department in Berlin confirm.

At a recent panel discussion organised by Alice Schwarzer in Berlin, social worker Sabine Constabel reported that in Stuttgart, all sex workers are monitored and recorded. In its 2012 report Human Trafficking for the Purpose of Sexual Exploitation, the State Office of Criminal Investigations in North Rhine-Westphalia (NRW) mentioned that despite the high density of controls in NRW, the number of victims of human trafficking for the purpose of sexual exploitation had declined. As the report points out, there is no identifiable effect of the Prostitution Act on the situation of victims of human trafficking.

Therefore, the claim that the police is lacking the legal authority to control brothels is incorrect where Berlin, Bavaria and North Rhine-Westphalia is concerned. In fact, the legal authority of the police, which is regulated differently on a state level, remained unaffected by the Prostitution Act. When anti-prostitution activists make claims to the contrary, they are either poorly informed or deny this fact intentionally, whereas politicians utilise the subject to cut a good figure in front of their citizens.

4. Obstruction of the fight against „forced prostitution“

“We will take action not only against human traffickers, but also against those who knowingly and willingly take advantage of the plight of victims of human trafficking and forced prostitution and abuse them with sexual acts.”

The above mentioned frustration of law enforcement officers over the difficulty to obtain evidence is as comprehensible as the general intention to punish those who knowingly take advantage of the plight of victims of human trafficking. In practice, prove of this knowledge is difficult to not at all possible to obtain, and this passage in the coalition agreement leaves this question unanswered.

It is to be feared that clients of sex workers will shy away from cooperating with the police, should there be uncertainty over whether or not they could face punishment if they were to report suspicions. As in my previous article, I would like to cite Pye Jacobsson, a sex worker and spokesperson for Rose Alliance, an organisation by and for sex and erotic workers in Sweden.

“In the sex industry there are people that are being abused, that are suffering, that are trafficking victims etc. But the normal way for the police to find out is not from sex workers, it’s from clients. Because there are clients who are actually not assholes, they will say ‘this doesn’t look good’, they will call the police. And of course now they don’t call the police anymore, because if they call the police they will be accused of a crime.” (To view the interview, please click here.)

5. Lack of definitions

“In the fight against human trafficking, a stronger focus will be placed on labour exploitation.”

Since the passage is titled “Human Trafficking, Brothels”, the coalition agreement here does not appear to refer to labour exploitation in general, but to human trafficking for the purpose of sexual exploitation exclusively. One can assume that the above sentence hints at so-called flatrate brothels, about which Undine de Revière, sex worker and spokesperson for the Trade Association Erotic and Sexual Services (BesD) in Germany, states the following.

Generally, we favour maintaining the diversity of work places and work modes of sex workers. I know women who like to work exactly like that – because they don’t want to be bothered with client acquisition, because they value the fixed daily income, and because their earnings are often not worse but sometimes even better there. And, to say it directly: at first glance, the flatrate stuff sounds, let’s say, overstraining. But it’s predominantly an advertising ploy. Those customers pay once and then want to do it ten times, but can only do it twice. But of course there are women who are unable to cope with it, and who do not want such working conditions and find them terrible.

The exact plans of the looming coalition of Conservatives and Social Democrats where a regulation or ban of flatrate brothels are concerned remain nebulous, as so many aspects in this passage of the coalition agreement.

Conclusion: A sham of the “forced coalition”

Just as the law to fight human trafficking and control brothels by the coalition of Conservatives and Liberals, which failed to pass the Bundesrat, the plans of the prospective “forced coalition” of Conservatives and Social Democrats fail to lay the foundations to effectively fight human trafficking and provide protection as well as an unlimited right of residence for victims of human trafficking. Furthermore, there is again a lack of definitions, definitions, definitions.

The question of the funding for the planned measures remains open, just as the question how to prove it when someone knowingly and willingly takes advantage of the plight of victims of human trafficking and “forced prostitution. This proposition to no longer take the testimonies of alleged victims of human trafficking into account is particularly alarming, as it opens the door for paternalistic law enforcement officers to disempower and infantalize self-determined sex workers and migrants. In light of Helmut Sporer’s advocacy to reintroduce mandatory health checks for sex workers, it seems possible that forcing sex workers into mandatory “rehabilitation programmes” may be next.

This sham by the CDU/CSU and SPD indicates a fundamental misjudgement of the subject matters, caused by the continued disregard of the opinions of experts, sex workers and other affected parties. Judging from this coalition agreement, one thing is certain: these plans will neither help to effectively fight human trafficking, nor will they provide an effective protection for victims of human trafficking. Instead, an erosion of sex workers’ and migrants’ rights is to be feared.

In closing, I would like to pass the word to the aforementioned Undine de Rivière.

As if the hastily composed law right before the parliament’s summer break wasn’t enough, we are yet again faced with a smorgasbord of discriminating and counterproductive symbolic politics that aims to satisfy the public pressure created fuelled by sensational media and hate campaigns as quickly as possible. For the second time within the space of a few months the chance is squandered to work in an objective and considerate way and together with those affected on practical solutions for the actual problems in the industry.


*Forced Prostitution

Since the term “forced prostitution“ is contested, it is here put into quotation marks.

“Forced prostitution doesn’t exist. Prostitution is a voluntary sexual service provision that is based on the premise of mutual consent between adult contractual partners. Without this consent, it is not prostitution but forced sexuality, i.e. sexualised violence.” Press Release by the Federal Task Force Law and Prostitution, March 14th, 2005

About this translation

While I always try to provide as many English language sources as possible, most of the links in the above article lead to German language sources. Please use a translation website or post any questions you might have in the contact form below.


German Sex Worker Organisation BesD responds to Bundesrat Resolution about Prostitution Act Reform

Logo of the Trade Association Erotic and Sexual Services

Logo of the Trade Association Erotic and Sexual Services

In April, the Upper House of the German Parliament, the Bundesrat, passed a resolution calling for an objective debate and differentiated measures amid plans by the ruling coalition of Conservatives and Social Democrats to reform the German Prostitution Act of 2002 (ProstG). Below is a response by the Trade Association Erotic and Sexual Services (BesD), a German sex worker organisation founded in October 2013.

Equal Treatment Under The Law

On April 11th, 2014, the Bundesrat, the Upper House of the German Parliament, called for an objective debate and differentiated measures to regulate prostitution and sex businesses, following a proposal by the Saarland, one of Germany’s sixteen federal states.

According to the Bundesrat, the public debate about prostitution is frequently affected by prejudices, a lack of knowledge and sensationalism. The Bundesrat found no solid evidence supporting the claim that human trafficking in Germany had increased and it confirmed that the number of reported cases had actually decreased despite an increase in police investigations. The Bundesrat also rejected the blanket equation of human trafficking and prostitution and emphasised the protection of prostitution under Article 12 of the German Basic Law (GG), which guarantees the freedom to choose one’s occupation. At the same time, it called for further measures to protect victims of human trafficking, e.g. by granting them the right of residence.

Furthermore, the Bundesrat deemed the introduction of a law to criminalise clients an unnecessary and counter-productive measure. On the one hand, § 138 of the German Criminal Code (StGB) already prohibits knowingly taking advantage of the plight of trafficking victims, and on the other hand, the police actually receives a considerable number of tip-offs in regards to human trafficking from clients themselves.

The Bundesrat also opposed the re-introduction of mandatory health checks for sex workers, thus paying tribute to the successful preventive measures by the German AIDS Service Organisation and the local health authorities. Mandatory health checks represented grave infringements of basic human rights, and there was no evidence that they could halt the spread of sexually transmitted diseases. In addition, the measure could create the wrong impression that other precautions (e.g. condoms) were then unnecessary. Sensible and effective, on the other hand, were the expansion of voluntary, anonymous counselling services, which already formed part of the Protection Against Infection Act (IfSG).

The Trade Association Erotic and Sexual Services (BesD) welcomes the objective discussion of the Bundesrat about prostitution and confirms its assessment of the above mentioned points. However, in light of the continued societal stigmatisation of sex workers, we consider the reform plans of the Trade Regulation Act (GewO) and the Criminal Code (StGB) that were also mentioned in the resolution as problematic.

The Bundesrat called for an introduction of statutory permissions for “sex businesses”. While it correctly identified that to begin with, a definitional clarification of the term “sex business” is necessary, it did not realise that the legal definition of the term “reliability” is also extremely insufficient. A business can have its operating licence denied if an applicant is deemed “unreliable”. In case of doubt, this leads to a situation where an official needs to make a discretionary decision. Especially in a trade that is subjected to numerous societal taboos and prejudices, this creates incalculable entrepreneurial risks. As a result, smaller businesses unable to afford taking legal action will be threatened with closure. The imposition of statutory permission requirements for the granting of operating licences raises similar concerns.

We also vehemently reject the idea mentioned in the resolution of introducing a registration of sex workers according to § 14 Trade Regulation Act (GewO). Sex workers are affected by the moral condemnation of prostitution: our occupation is not socially accepted. An outing in connection with business registrations or brothel concessions is inacceptable for most sex workers. Many lead a double life out of their own free will or out of necessity to protect themselves from the negative consequences of stigmatisation. Up until now, the tax registration was sufficient for us. We could trust upon the tax office not to disclose our personal data. The Trade Regulation Act (GewO) lacks a corresponding safety measure.

As the Bundesrat admitted, the introduction of the Prostitution Act (ProstG) has led to an authorisation of the state police forces and to a greater density of police raids in “sex businesses”. Therefore, it should be examined to what extent the legal registration of sexual service providers and/or “sex businesses” might have the potential to undermine our fundamental right of inviolability of the home under Article 13 of the German Basic Law (GG). The urgency becomes apparent that not only the term “sex business” needs to be defined, but there also needs to be a legal differentiation between running a “sex business”, merely renting out premises, and actually engaging in prostitution, e.g. at a private apartment.

Especially in light of the above, we are very concerned over the proposal to withdraw the so-called landlord privilege in the Criminal Code (StGB). Operators of sex businesses who might not do anything other than ordinary employers – namely, giving work instructions to employees who are financially dependent on them – are already sailing close to the wind due to § 180a and § 181a of the Criminal Code (StGB). Putting landlords on the same level as them would mean to further push our trade towards criminality. For independent sexual service providers it would then be more difficult to rent suitable premises to work in safety and be in control. On the contrary, working in dependence on “middlemen” would become more attractive again. To protect our independence we therefore not only reject to criminalise our clients but all attempts to criminalise sex work in connection with a reform of the Prostitution Act (ProstG).

With regards to the suggestion by the Bundesrat to standardise the age of consent, we support a standardisation to 18 years of age. The well-meant approach to increase the age of consent to 21 years of age misses the point of the lived realities in our trade. Beginners between 18 and 21 years of age would be denied access to safe work spaces, leaving them vulnerable to criminals and forcing them to work at locations without protection from dangers.

Putting the age of consent to 21 years of age, already a reality under § 232 art. 1 sen. 2 of the Criminal Code (StGB), has led to the fact that a considerable number of trafficking victims in Germany are German citizens who are classified as victims solely because they are between 18 and 21 years old, without the necessity of any form of exploitation or violence having taken place.

In our view, equal treatment under the law with other occupations, including the age of consent, is the best means to promote the destigmatisation of sex work. In contrast, legal exceptions, especially in areas of criminal law, cement the particular perception of sex work among the population. It promotes the formation and cultivation of myths and prejudices, which are repeated over and over again to legitimise the continued discrimination of sexual service providers.

Alternatively, one could consider including the prohibition of discrimination based on one’s choice of occupation in the General Equal Treatment Act (AGG) or the recognition of sex work as freelance occupation. Social insurance structures for sexual service provides could be designed according to the model of the Artist Social Fund (KSK). With regards to the operation of a “sex business” we see no advantages of statutory permission requirements compared to the common duty of disclosure, which under § 14 of the Trade Regulation Act (GewO) applies for the absolute majority of all businesses and is therefore sufficient.

Author: Carmen Amicitia, Executive Board, Trade Association Erotic and Sexual Services (BesD).
Translation by Matthias Lehmann. Research Project Germany.

Click here to read the original statement in German.


Prostitution and Police Powers in Berlin

Mercedes Wanne Polizei Berlin. Photo by Gunnar Richter

Parliamentary Enquiry about Prostitution and Police Powers

In late March, the Berlin Senate issued a reply to a parliamentary enquiry by Evrim Sommer (Left Party) about prostitution and police powers in Berlin.

The response contradicts claims made by anti-prostitution activists and some police representatives that the Prostitution Act of 2002 (ProstG) was hindering police investigations related to combating human trafficking. According to the Berlin Police, no such hindrance exists since the ProstG came into force.

The response also revealed the importance of confidence-building measures between the police and sex workers for the prosecution of offenders and the number of controls and reported cases of sexual exploitation in Berlin.

Read the full text below or click here to download the response of the Berlin Parliament as PDF document. This resource is in English. Click here to download the German original.

Small Enquiry

BERLIN House of Representatives
File 17/12 941 | 17th Parliamentary Term

Small Enquiry by Evrim Sommer, Member of the Berlin House of Representatives (Left Party)
from December 5th (Received December 9th, 2013) and Answer

Prostitution and Police Powers

On behalf of the Senate, I reply to your Small Enquiry as follows:

1. What has changed for the Berlin Police after the Prostitution Act came into effect, what trainings are provided to deal with prostitution, and how are they being utilised?

Answer: The Act Regulating the Legal Situation of Prostitutes (ProstG) from December 20th, 2001, aimed primarily at the strengthening of the social and legal protection of prostitutes. In its final report for a research project on the impact of the Prostitution Act, the Social Scientific Women’s Research Institute of the Protestant University of Applied Sciences (SoFFI K.) concluded that to date, the impact has not been very extensive and is hardly noticeable for the target group of prostitutes. (Retrievable here)

According to the Berlin Police, investigations related to combating human trafficking were not hindered following the entry into force of the Prostitution Act. At the federal level, there are plans to comprehensively revise the Prostitution Act to improve legal provisions regarding the regulation of prostitution and the means of control by the authorities. Trainings to deal with prostitution are provided by the special commissariats of the State Criminal Police Office (LKA) as well as in collaboration with counselling centres, and they are met with a lively response.

2. On what legal basis and for which reasons are brothels and prostitutes in Berlin controlled by the police?

Answer: Prostitution is neither illegal nor immoral. The object of police activities is not prostitution itself but the adverse effects and disturbances of public security and order, especially where associated crimes are concerned. Of particular importance here is the fight against human trafficking.

Since human trafficking represents a control-related offence and since the main goals are the early identification of potential victims of human trafficking as well as their rescue from forced prostitution and/or sexual exploitation, the State Criminal Police Office is for years now successfully practicing an integrated concept in close collaboration with other authorities and counselling centres.

The special commissariats at the LKA 42 carry out routine and warranted controls and patrol all areas of prostitution on the basis of the General Security and Public Order Act (ASOG Berlin). Apart from identity checks, every contact between the police and prostitutes is used to conduct confidence-building talks to provide advice and information as well as to point out counselling centres. Prostitutes are given advice on how to protect themselves from violent pimps and punters. In addition, business cards with details are handed out to allow prostitutes to establish contact as quickly as possible and to provide police support if necessary. Moreover, the LKA’s Department 42 is on-call all year round.

Furthermore, in its fight against human trafficking, the police is following a multidisciplinary approach and cooperates with counselling centres that provide psychosocial support for concerned individuals. The principles of this collaboration are governed by the cooperation agreement between the Police Superintendent of Berlin and the sponsors of the counselling centres. Through that, an image of the Berlin Police as a competent point of contact is conveyed to prostitutes. As a result, there’s a high level of willingness among prostitutes to cooperate with the police, which is essential for the prosecution.

Moreover, in accordance with the Code of Criminal Procedure (StPO), offender-oriented repressive measures are conducted to combat crimes of violence and exploitation in prostitution. The conviction of significant offenders brings about a long-term weakening of the scene and has a positive effect on the willingness of victims to testify.

3. Which departments of the police are dealing with this and which offences are being prioritised?

Answer: The controls are primarily carried out by the LKA’s Department 42. In addition, controls are conducted by the respective local authorities within the scope of their regional responsibilities. The focus of these measures is placed on the offences “human trafficking for the purpose of sexual exploitation”, “pimping”, “sexual abuse of youth”, “sexual abuse of children”, and more generally, violent offences closely related to the practice of prostitution.

4. In what form and by what means are such controls and raids carried out?

Answer: The spectrum of the form and means of operations in the field of prostitution ranges from controls by the special commissariats to larger police interventions, depending on the respective case.

5. How many controls were carried out over the past three years and which criminal offences were detected?

Answer: Over the past three years, controls were carried out in all areas of prostitution in Berlin:

2012 -687-
2011 -822-
2010 -350-

The findings obtained through these inspections formed one of the bases for the reported cases of human trafficking for the purpose of sexual exploitation in Berlin’s Police Crime Statistics:

2012 -65-
2011 -73-
2010 -66-.

Berlin, March 26th, 2014

On behalf of
Bernd Krömer
Senatorial Administration for Interior Affairs and Sports
(Received at the Berlin House of Representatives March 28th, 2014)

Translation by Matthias Lehmann. Research Project Germany.


Bundesrat demands objective debate and differentiated measures amid plans to reform Prostitution Act

Bundesrat (Photo: campsmum / Patrick Jayne and Thomas)

Resolution about measures to regulate prostitution

Last Friday, the Upper House of the German Parliament, the Bundesrat, passed a resolution calling for an objective debate and differentiated measures amid plans by the ruling coalition of Conservatives and Social Democrats to reform the German Prostitution Act of 2002 (ProstG).

The Bundesrat found that debates in the public sphere and in the media were still based on prejudices, a lack of knowledge and sensationalism. The Bundesrat particularly opposed the blanket equation of prostitution and human trafficking. Even if prostitution might not be a “job like any other”, the Bundesrat affirmed that it fell under the freedom to choose an occupation, according to Article 12 of the German Basic Law.

In 2012, the Federal Criminal Police Office (BKA) reported 612 victims of human trafficking for the purpose of sexual exploitation in Germany. Despite the assumption that a considerable number of cases remained unreported, the identified cases had to be seen in relation to the estimated number of sex workers.

The Bundesrat also stated that there was no solid evidence that the adoption of the Prostitution Act had lead to an increase in human trafficking. Despite an increase in investigative proceedings, the number of victims had not increased since the Prostitution Act came into effect.

The Bundesrat called upon its members to further develop the Prostitution Act to ensure greater protection from violence for sex workers, to enhance sex workers’ right to self-determination, to guarantee fair working conditions, and to push back illegal forms of prostitution.

The Bundesrat opposed the introduction of mandatory health checks, judging them as unreasonable and hardly expedient. Mandatory health checks represented grave infringements of basic human rights, and there was no epidemiological research available to prove they could halt the spread of sexually transmitted diseases. On the contrary, they would increase both the stigmatisation of sex workers and the threshold to seek counselling in difficult social situations. In addition, the measure could cause clients of sex workers to believe safe sex to be unnecessary.

Finally, the Bundesrat also dismissed the creation of a specific criminal offence for clients who knowingly take advantage of the plight of victims of human trafficking. Such conduct is already punishable  in accordance with § 138 Section 1 Number 6 of the German Penal Code (StGB).

Click link below to download the resolution of the Bundesrat. This resource is in German.

[PDF] Drucksache 71/14 (Beschluss) Entschließung des Bundesrates – Maßnahmen zur Regulierung von Prostitution und Prostitutionsstätten

Further reading

A Sham of the “Forced Coalition”- Human Trafficking and Prostitution in the coalition agreement

Photo: campsmum / Patrick Jayne and Thomas [CC-BY-2.0]