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.
Quotes from the Greens‘ position paper
“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.”
“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.”
“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.”
“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.”
“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.
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.
Click here to read the original statement in German.