Sex Work Regulations in Germany

Posts tagged “Prostitution Regulation

ProstSchG: An impractical and discriminatory special law | Statement by Voice4Sexworkers

Mock Whore ID at sex worker protest in Berlin © 2016 Friederike Strack. All Rights Reserved.

Photo: Mock Whore ID at sex worker protest in Berlin © 2016 Friederike Strack. All Rights Reserved.

Today, North-Rhine Westphalian Health Minister Barbara Steffens and Claudia Zimmermann-Schwartz, Chairwoman of the Roundtable Prostitution in North Rhine-Westphalia (NRW), held a press conference about the planned Prostitutes Protection Law (ProstSchG), which they argued would further drive sex workers into illegality instead of protecting them. As part of the press release, statements from two sex workers who participated in the Roundtable were presented.The following is an expanded statement from one of them, translated from the German original published by Voice4Sexworkers. Please click here to view the press release by the Ministry of Health, Equalities, Care and Ageing (MGEPA) in NRW. This resource is in German.

Statement by Melanie, Participant at Roundtable Prostitution

I’m a single mother of two and I’ve been working as a sex worker for the past ten years. I’ve never been able to earn my entire livelihood through sex work but I didn’t want to fall back on receiving welfare or housing benefits. That’s why the additional income from sex work has always been welcome and has enabled me to afford my children normal lives free from social exclusion.

The most important principle – and that’s exactly what the draft bill before us is not based on – is that prostitution has to be decriminalised first before one sets out to regulate it. This means that sex work must not be governed by criminal law. Last year, Amnesty International arrived at the same conclusion after conducting a comprehensive 2-year study in which they interviewed sex workers, particularly in countries were sex work is heavily regulated or even forbidden. A UN report from 2012, based on research in 48 countries, also found that licensing or registration systems proved to be ineffective or benefited only a small number of sex workers. In jurisdictions that have introduced these systems, the vast majority of sex workers operated outside of them. Comparisons with countries like Germany revealed that the working and living situations of sex workers improve when sex work is legalised. But the most positive results have been accomplished in New Zealand, where the final step towards decriminalisation was taken almost 13 years ago.

The authors of this Prostitutes Protection Law did not muster that same courage. Under the guise of wanting to protect us, they drafted a bill that is entirely “exit-oriented” but mentions nothing about how to earn a living or receive benefits for one’s livelihood. The Hartz IV welfare benefits are insufficient even now, and it is for that very reason that many of us choose to engage in sex work. If one were really interested in helping us, other alternatives and practical assistance were required instead of fobbing us off with minimal basic coverage. Notably, in urban areas where the unemployment rate is high, this minimal basic coverage does not provide for sustainable future prospects.

Instead of the current plan of sinking an initial 76.2 million euros followed by 85 million euros annually into this bureaucratic monster, these funds could be used for more meaningful projects, such as counselling centres, self-help organisations, interim payments, and support for qualification measures to enable occupational reorientation. A social welfare fund for sex workers would also be a blessing, since a considerable percentage of us cannot even afford the minimum contribution towards our health insurance.

Instead of offering us the assistance we have suggested time and time again, the new law would impose insurmountable obstacles on us. Our survey among sex workers from December 2015 has also shown what they really wish for and need: effective protection from discrimination, protection against dismissal from a primary job due to engaging in sex work on the side, protection against extortionate rent, more counselling centres (particularly of the kind that don’t just offer help on how to exit, but also how to safely enter sex work), and better protection of their anonymity, especially when dealing with authorities. The ProstSchG fails to provide any of that and instead amounts to the exact opposite, since it even goes as far as to cancel out the Basic Law. If this new law came into effect, the police would be allowed to enter any private home without a court order. A simple allegation that prostitution was taking place in any given apartment would suffice as justification.

Registration

In our survey, around one third of all respondents stated they had already had negative experiences with authorities. An equally large share stated they had never outed themselves to authorities out of fear or shame. Together, they represent far more than half of all respondents. Having to explain oneself and provide intimate details to a stranger would only exacerbate this trend.

In addition, it is incomprehensible why it should be necessary to provide all our work locations or have to register anew to work in additional cities or states. These measures are simply meant to enable authorities to create movement profiles that would reveal a lot but contribute nothing to our protection.

Licensing

Instead of supporting people engaged in sex work to self-organise and create individual work places, the employment situation of independent sexual service providers would be made worse. It’s not enough that the law in its current form would effectively give big operators supervisory powers over sex workers, since operators would have to record their registration details, length of stay and other specifics to pass on to authorities. The law would also strengthen the overall position of those operators by rendering it virtually impossible for sex workers to work alone or with colleagues in apartments. As a result, it would push them into the hands of the very operators who are such thorns in the sides of so many municipal politicians – just their sight, of course, not their taxes. This law pretends to protect us from heteronomy but it would cause the exact opposite: it would deprive most of us of the opportunity to self-determined and independent work.

The authors also further the “laissez fairy tale” of prostitution businesses not being subject to strict regulations and the poor police having no way of controlling anything. Nothing could be further from reality. Rather, it is an attempt to win approval for the draft bill from the public instead of explaining to them why an annual 85 million euros should be forked out for measures that will not help sex workers or those municipalities already short on funds.

Stigma

The draft bill consistently lacks the principle of impartiality. It is blatantly apparent that the authors were unable to discard the stigma attached to sex work, against which (incidentally), no steps have ever been taken since the current prostitution law came into force.

Instead, the measures planned under the Prostitutes Protection Law aggravate and intensify the very stigma which sex workers around the world cite consistently as the the main obstacle in their daily lives. The wording of the draft bill and the claims made in the substantiation for the law exacerbate the pre-existing prejudices and clichés. If sex work is mentioned in the same breath as criminal activities and sexual exploitation, that is the image that manifests in people’s heads.

Those who dismiss the few sex workers who dare to stand up for their rights as “privileged” should rather become aware of their own complicity in the stigmatisation of sex work. Instead of drafting laws that will curtail the options of all sex workers, the focus should be to add to options available to them. Those who would be affected the most by this law are the very people who already have too few options to begin with, namely migrants and trans* people, and who are often subject to multiple discriminations on a daily basis.

Conclusion

My participation in the “Roundtable on Prostitution in North Rhine-Westphalia” was the first time I experienced people talking with me. Usually, people only talk about me, even when I’m present. The Roundtable proved that it is entirely possible to sit down with the actual experts – us (!) – and find solutions. If one doesn’t talk with sex workers one ends up with the very result the ProstSchG represents: an impractical and discriminatory special law, which excludes us from equal participation in economic life and renders us socially vulnerable.


Original by Voice4Sexworkers. Translation by Matthias Lehmann. Proofreading by Christy Swain and Gabriel Pettyjohn. Published with kind permission.


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


“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


“Prostitution law reform won’t protect sex workers but intends to protect society from prostitution” – Interview with Tanja from sex worker association BesD

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

This interview was conducted by Ariane G. and published at Kaufmich magazine, a social network for escorts and their clients. Clicca qui per leggere la versione italiana di “Intervista a Tanja dell’associazione lavoratori del sesso BesD”. 

Tanja Sommer, Escort and Sex Workers’ Rights Activist

Ariane: How old are you and where do you live?

Tanja: I‘ve lived in Bavaria for the last ten years, in the metropolis of the beautiful Upper Palatinate (Oberpfalz), in Regensburg, to be exact. At 53, that’s my actual age, I am probably not the youngest escort anymore, but I can’t complain over any lack of interest from men.

Ariane: Since when do you work as an escort?

Tanja: I made my first experiences eight and a half years ago, and since eight years I am working independently.

Ariane: Do you have experiences with different types of sex work?

Tanja: Since I’m curious, and also because I’ve tried from the start to network with colleagues via the Internet, I visited and tried out different work places. Sometimes, I also wrote reports about them. I started at a massage parlour in an apartment, I did outcalls to private homes and hotels, worked as an escort via escortservice23, and then I worked on a daily basis at an apartment of es23, which I decorated together with other colleagues. At some point I wanted to get to know colleagues in person whom I had met over the Internet and so I drove to their work places to see how the work was in other settings. I worked at a private house, the “Susie” in Pirmasens, and that’s still one of the nicest locations I’ve ever seen. There are apartments shared by several colleagues and a madam, or you can also rent single apartments on your own.

I also wanted to get to know clubs, since Nasti, a colleague, was working in one, so I went several times to the Sakura in Böblingen, and once to the Paradise in Leinfeld-Echterdingen [near Stuttgart], and I also went to the “notorious” Pussyclub in Fellbach once. It was very educational for me. Through the talks with my colleagues there and the insights I got, I changed my opinion about flat rate clubs. I’ve also taken a look at Laufhäuser [walk through brothels] and rented a room there. But over time, I found my own niche, and now I am almost exclusively working as an escort or do outcalls at hotels. When I’m at home, clients can visit me at my nice apartment or stay overnight.

Ariane: Since when are you involved in the sex workers’ rights movement?

Tanja: It started around 2007. At first, I was a moderator at sexworker.at [an online forum by and for sex workers in German-speaking countries] and then in forums for clients.

Ariane: Why did you get involved?

Tanja: When I notice that things aren’t right, I can’t keep my mouth shut, and I don’t just talk but try to really change things. Providing sexual services was a big chance for me to work independently and successfully on my own terms, and it allowed me to work with a flexible schedule. There were frequent misunderstanding between colleagues and clients, and there were arguments and certain social interactions that I found unacceptable. That’s why I tried to allow people insights into my and our world and everyday experiences, and I think it made a real impact. I have always stood by my colleagues, when I felt they were treated unfairly and couldn’t defend themselves. Already back in 2007, I felt that things started to change for the worse, and it was my opinion that if we don’t join forces to establish our own rules, then we will end up getting regulated from above. But that would happen through people who have no insights and no connection to our work and therefore can’t empathise with us.

I tried time and time again to raise awareness for that among my colleagues but it fell on deaf ears. The responses I got were always, “nothing’s going to change”; “I don’t know why you’re so worried”; “that’s so typical German, you want rules for everything”. To be honest, I am not happy that tim proved me right, but I am very glad that in the meantime, many colleagues have come to agree with me and start to stand up for their rights, even if it’s just with a passive membership at the Trade Association erotic and sexual Services [BesD]. Finally we got a voice, and we are being listened to, even if it means an incredible amount of work and personal commitment, as I know all too well as one of the board members.

The Government’s Prostitution Law Reform Proposals

Ariane: What is your opinion about the proposals for the reform of the Prostitution Act laid out in the key issue paper?

Tanja: I fear that it’s only the tip of the iceberg, because a key issue paper is nothing but a preliminary statement about which points the ruling parties are already in agreement and do not wish to discuss any further. In my opinion, the public and the media should pay very close attention, as otherwise nobody will take notice when it comes to the actual bill proposal, and then it will just get rubberstamped in the parliament. I can’t shake the feeling that there’s more in store for us, which they haven’t even mentioned yet. Many points fail to take our everyday work experience into account, and contrary to what politicians loudly proclaim, they won’t do anything to protect us but will only serve to render our work impossible.

“Mandatory registration” and “mandatory notification” – they intentionally use terms that the average Jane and Joe know and accept as good. That’s why they don’t think about it and eagerly shout “Yes, that’s good, everybody has to do that anyway”. This isn’t the same, however, as citizens or self-employed people having to register with authorities. It actually attempts to make sex workers the first workers engaged in a legal occupation that have to register with the police of their home town. They promise to protect our data but my personal experience tells me that that isn’t even happening today!

We are also supposed to receive a “whore pass”, which we will then have to present to inspectors, operators, police officers and clients. Mandatory notification also doesn’t mean to give notice to tax authorities, because that is already mandatory. In the future, we are supposed to give notice to the local police station whenever we leave our home town to work elsewhere, announce where we plan to work next, give notice to the police at the new location when we arrive and inform them how long we intend to stay, and then report back once we are back home. The way it is planned now this would apply for all sexual service providers, regardless if they are escorts, street-based sex workers, work at a Laufhaus [walk through brothel], club or any other venue. We could go through all the points of the key issues paper in that way, but I suppose it would go beyond the scope of this interview.

Ariane: Could you get used to that? What do you criticise?

Tanja: No, I cannot get used to that. Apart from the prohibition of advertising unsafe practices like AO [‘Alles ohne’: ‘everything without (condom)’], the reform won’t serve to protect us, as is claimed, but intends to expand the rights of the police and to protect society from prostitution. The intention is to curb prostitution. There’s no differentiation made between visible prostitution and that which occurs in private, and no attention is paid to the different needs that arise from them. They create obstacles that will make it impossible for many of us to work legally, which in turn will criminalise those who simply cannot afford to register without having to fear consequences, e.g. single mothers or women who have a main job elsewhere, and so they will be forced to work without protection or quit.

These measures will foster the very circumstances they are supposed to prevent. They will create a parallel universe where you have to pay for your protection, including protection from the police, and they will create dependencies that no woman wants. What really annoys me is how human trafficking is understood as exclusively occurring in the context of sex work, and that prostitution regulation is expected to fight human trafficking. In other industries, exploitation is tacitly accepted and even promoted: in care, agriculture, industry, temporary employment, 1-Euro-Jobs, low-wage labour and so on.

Reform proposals by sex workers

Ariane: What would be the ideal legal situation to regulate sex work?

Tanja: First of all, sex work must be decriminalised, and then more needs to be done to further destigmatise our work. Sex work has to be accepted as a freelance occupation, and there’s a need for a nuanced view of the different types of sex work to find regulations that serve to improve the work and living conditions of sex workers in their respective circumstances. Off-limit zones must be abolished and only be discussed as pragmatic solutions if there are problems with visible prostitution, and local residents, sex workers, operators and politicians have to be involved in those discussions.

There might be a possibility for contractual employment at flat rate clubs, massage parlours, at agencies and perhaps where sexual assistance is concerned, but it shouldn’t be mandatory. Sexual service providers must have the right to decide whether they wish to enter a contractual employment or prefer to work as freelancers. In all other types of sex work, contractual employments are impossible without impeding the mobility of sex workers and forcing them to remain at one location, even if they don’t want to. In addition, any future law needs to be a federal law that the federal states [Bundesländer] are required to fully implement. Otherwise, we’ll see more of the arbitrariness of the authorities in each of the states. Just look at Munich: the city refused from the very start to implement the Prostitution Act of 2002 and declared 97% of the city as off-limit zone.

Sex workers must be involved as experts in negotiations over any expansion of the Prostitution Act. The different concepts need to be clearly defined in advance so that everyone is working on the same basis. The federal government must provide funds to expand free health consultations for sexually active people – not just for sex workers and clients, but anyone who frequently changes sex partners.

Roundtables must be established regularly in all federal states and involve experts. Occupational counselling for newcomers and programmes for job reorientation must receive funding, too. As the hurdles to enter statutory health insurance schemes are too high for most freelancers, I advocate for the introduction of a social welfare office for freelancers to enable them to get health and pension insurance. There’s a long and difficult path ahead of us but that shouldn’t dissuade us from pursuing and shaping it.

Ariane: Thank you very much for the interview. I wish you a lot of strength for the tasks ahead.


Tanja Sommer is a sex worker and a board member of German sex worker organisation Trade Association erotic and sexual Services (BesD). She tweets at @TanjaBesD and can be reached via email at tanja[at]berufsverband-sexarbeit.de. You can follow the BesD on Twitter and Facebook. Ariane G. is a former sex worker and an advocate for sex workers’ rights. She tweets at @hauptstadtdiva. Voice4Sexworkers is a project by and for sex workers and anyone interest to learn more about sex work. You can follow V4S on Twitter and Facebook. Translation by Matthias Lehmann. Some links were added. Click here to view the German original.