The German Prostitution Act – myths, background, scope ….

Ausnahmsweise auf Englisch, eine Zusammenfassung für LeserInnen aus dem Ausland.

The German Prostitution Act

first a quote is from Wikipedia (the entries in German in Wikipedia have largely been written by the pro-prostitution lobby, I’m not sure who did the English version):

Legislative reform (2002) 

In 2002 a one page law sponsored by the Green Party was passed by the ruling coalition of Social Democrats and Greens in the Bundestag. The law removed the general prohibition on furthering prostitution and allowed prostitutes to obtain regular work contracts. The law’s rationale stated that prostitution should not be considered as immoral anymore.

The law has been criticized as having not effectively changed the situation of the prostitutes, often because the prostitutes themselves don’t want to change their working conditions and contracts. The German government issued a report on the law’s impact in January 2007, concluding that few prostitutes had taken advantage of regular work contracts and that work conditions had improved only slightly, if at all.

 

Basic overview: 

The law, „Prostitution Act“ in English (concise, but inofficial translation):

§1

“If sexual actions have been performed against a payment agreed upon in advance, this agreement shall constitute a legally effective claim. The same shall apply in case a person remains available for the provision of such actions for a certain period of time against a payment agreed upon in advance, particularly in the context of an employment relationship.”

§ 2

„The claim cannot be transferred and can only be asserted in the claimant’s own name. Only the complete non-fulfillment can be considered an objection against a claim according to § 1 Clause 1, while according to § 1 Clause 2 also a partly non-fulfillment as far as it concerns the agreed period of time, can be considered an objection against a claim. With the exception of the objection concerning the fulfillment according to § 362 of the German Civil Code and objections on grounds of the statute of limitation, further objections shall be excluded.”

§ 3

„The limited right of direction, to give instructions to prostitutes as part of a dependent activity, does not conflict with employment in accordance with the Social Security Law.”

 

Meaning: 

The first § states that if a prostituted woman and a john agree on money to be paid for „sexual acts“ this is a valid contract. The woman can actually take him to court for non-payment. This also applies if she waited for him and he didn’t show up.

Given it’s money first, no practical consequences. Actually, before this law, the woman could take the money and run. Since prostitution was ‚immoral‘ this was not a valid contract, the buyer couldn’t insist on services. Now he can or it‘ money back – to him.

The second § states that the buyer can’t complain if he didn’t like the services and that it is only the woman (other person) in prostitution who can claim the money. The pro-lobby is trying to sink that – allegedly so that she can employ a lawyer to get the money. shuure.

The third § has the prase „limited right of direction“. Since paid rape organized by a third party doesn’t sound good, the idea was that a brothel owner/facilitator/ceo should not be able to exert the same rights over a person in prostituiton as employers in general have regarding employees. So the fact that he only has „limited right of direction“ should not make it impossible to have a full working contract.

In practice, of course, the situation hasn’t improved. There are no „working contracts“ with paid sick leave, payment into social security, pension plans etc. (44 out of an unknown number of women in prostitution, estimates range between 150 000 (laughable) and 700 000, the statistical office in Germany says 200 000 in „classic“ prostituiton and 200 000 more in table dance, child prostitution and such „non-classic“ forms.

The „limited right of direction“ plays out in different ways. Brothel owners hasten to explain that they only provide the infrastructure for the women to use. So a woman in a brothel is of course free to work elsewhere if she doesn’t like the conditions. In order for a brothel owner to fall foul of current laws, he/she has to command all of these: Tell the women how to dress, i.e. run stark naked, plus tell her when and how long to be available, plus tell her she can’t insist on a condom for oral (standard practice except for Bavaria, where condoms are mandatory), tell her what acts to do …. if he does all of this except one of them, courts won’t even consider prosecuting.

Women in brothels either pay entrance fees to be there or high rents for the rooms, or both. Entrance fee: arount € 80.- a night, rooms: € 150.- a night seems to be standard.

The myth:

We are being told that the law was to improve the legal and social standing of the prostituted. But it was devised after intensive lobbying by pro-sex industry groups, and it was made and passed within the context of sweeping changes in the German welfare and social benefits system. These changes included poor conditions for everybody who does not/has not/did not pay/paid consistently into the state pension system for example. In practice this targets every woman who ever looked after children without being paid for that. The government wanted to reduce spending in these areas/systems and increase contribution. So the law was simply done to get these women in prostitution to pay. That is the unvarnished truth.

Pimping and trafficking:

Pimping („facilitating and managing and arranging and providing comfortable working surroundings“) is legal as long as it isn’t „exploitative“. In practice this was left to case law, i.e. courts‘ decisions. They have at some point decided that exploitation means to take more than 50% of her earnings – after she has paid the brothel/flat owner. Impossible to prove, of course. And „directive pimping“ (my translation) is also illegal as under the conditions described above.

The laws on trafficking also had to be adapted to suit the new law. In 2004 an amendment declared that trafficking can only be termed such, if „one person makes use of the dire situation of another person or of the vulnerability associated with being in a foreign country in order to make that person take up or continue prostitution or engage in sexual acts with a third person by which she/he is exploited„.  The underlined phrase is a new addition, in other words, trafficking was largely legalized too and pro-prostitution activists hasten to show how good the statistics are with trafficking going down and only few cases identified. The law on trafficking was also moved from the group of laws dealing with „sexual self-determination“ to laws regarding „infringement of personal freedom“, to move it away from the group of laws that deal with rape etc.

Trafficking as a crime requires a victim’s statement in court in addition to evidence given by the police. Victims do not come forward, and since their families (children, siblings, parents) are often in the hand of the traffickers they will not make statements.

Currently there is a provision which offers some protection for the age group 18-21. Getting these into a brothel or engaging as a pimp for them remains illegal, even if the prostituted people „aren’t exploited“. The pro-sex industry lobby tries to change this law/regulation as there is an incredible demand for ever younger and smaller women. They say that this age group needs „special accompaniment into prostitution“ in order to be safe and kind-hearted souls directing them to „well-run brothels“ mustn’t be criminalized (I’m quoting.) (They are also hoping this will give jobs to older women in prostitution. A group that often rents out flats to other prostituted women, who move from being in prostitution to being pimps. They could then easily exploit, errr councel these 18 year olds in flat or appartments.)

Further development of trafficking:

There are currently three approaches:

  1. Trafficking is bad but can easily be separated from prostitution („sex work“) which is good. This approach is being phased out although some “advocacy groups” still take pains to scandalize trafficking to look humane. Besides, some lobbying groups like the Global Alliance Against Traffic in Women (GAATW) are built around this approach. And some activists still believe this, alas.
    .
  2. The number-and-data game.
    Approach: “We cannot say anything for sure and your anti-prostitution approach is based on faulty data, as there is no clear data that shows any increase in trafficking, on the contrary, and we’ll do our damndest to make sure there won’t be any data.” Kind regards, the German and Dutch governments.
    .
  3. Trafficking needs to be approached in a “differentiated” and un-prejudiced way.
    Approach: cf. “Forced prostitution” and “prostitution” as used by pro-prostitution activists 10 years ago: There was “forced prostitution” and everybody agreed this was a crime, and “free prostitution” a.k.a. “free choice”. This distinction is now being dropped, as “sex workers’ rights activists” explain that a “rational choice” – better than starving – is a kind of “free choice”.
    Similarly, there is trafficking for many purposes which is bad, and there are acts of national and international assistance, which are good.
    .
    The vanguard of the German prostitution lobby, Doña Carmen, goes furthest here: They openly advocate for the abolishment of all §§ in the German criminal code that criminalize trafficking. The line of argument is that trafficking is a “social construct” invented to harm „sex workers“, and esp. foreign „sex workers“. (Cf. their proposed bill on a new prostitution law in Germany, in German.)
    And, on a really sickening note: _All_ of the “sex workers’ rights activists” and publicly funded counselling/advocacy groups in Germany advocate scrapping the law that offers special protection for women (others) between 18-21 from trafficking by renaming the very act of trafficking for this age group “concerned accompaniment” into prostitution.
    A further example of this tactics is Brazil, and their proposed bill to legalize all forms of the sex trade. It includes renaming certain kinds of trafficking (except those of which are deemed “exploitative” as opposed to “non-exploitative” forms, the 50% definition applies) an “act of international solidarity”. This is offered in the context of peaks in demand as caused by the soccer world championship. (Cf. the proposed bill – Gabriela Leite bill.)
    Then there was a case in Austria involving an Amnesty member who also spoke in this vein (about trafficking in general) by muddling getting people across borders (for money) and trafficking itself. He got into trouble for openly advocating for criminal behavior, and cast himself as a hero for free speech. He won the court case. Amnesty supported him.Plus academics from neoliberal think tanks explain how “freedom” is the “recognition of the inevitable” and how wrong it is to view the victims of trafficking as “victims” thereby denying their “agency”, which is now called “limited agency.”

 

Continued criminalization of women (others) in prostitution:

Germany still has zoning regulations. The cities decide on that – municipal level. Falling foul of such a regulation of course criminalizes the person in prostitution. The first time there’s a fee, the second time, too, if the police decide that. The third time it’s jail. For the woman, of course, not for her pimp or the johns. Germany will implode if we punish men for anything.

Prostitution, inland revenue and turnover:

The German statistical office estimates that prostitution has an annual turnover of € 14,5 bn.

Women/people in prostitution of course need to pay taxes. This can happen directly as in Bonn for example, where parking meters were adapted for the women’s use. They enter coins and pull sth. like a parking ticket out of the machine which they must produce in case of check up.

In brothels in some places tax office employees visit the brothels in the morning and collect a tax fee of € 30.- for each woman they find there/know to be there at some point. As especially the foreign women get moved from brothel to brothel across Germany every 2-3 weeks, this is a safer way for Germany to provide great GNP figures.

Other cities have instituted a special brothel tax – „enjoyment-tax“.

As residents, women (others) in prostitution need to register with the inland revenue offices. They usually do not register as prostitutes or escorts or sex workers, but as personal life style managers or whatever, any title that does not require a job certificate. They then get taxed. If they are known to be escorts (via their advertisements on websites) the tax offices estimate their earnings and send them tax demands, st. 5-digit numbers.
So this creates further debt. The tax office as exit barrier.

Health insurance:

All STDs including HIV are officially considered „occupational hazards“ for women in prostitution. As a result the fees for health insurances sky-rocketed for these women. To my knowledge health insurances have recently been barred from charging ex-orbitant fees, but up to two years ago this was standard practice.

„Safe“ practices:

Bavaria is the only state/Land within Germany to have mandatory condoms. In spite of disinformation spread on the issue by pro-prostitution advocacy groups or their members, there’s no fee, however, so the law has no consequences even on paper. All it results in is the requirement for brothels or appartments to fix a plaque somewhere that condoms are mandatory. All the other Länder (German ’states‘) say that non-mandatory forms such as public education are a better way to go about it. The German pro-sex industry lobby is adamant that mandatory condoms will hurt the prostituted, and the German Aids-Hilfe, a huge NGO to support HIV positive people and to work on Aids prevention absolutely agrees that condoms should not be made mandatory. (Apparently the new wisdom is that they aren’t strictly necessary.)

 

____________________________________________

I’m out of comments. But this is what the situation is like, legally.

 

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