It’s an accident, stupid!

 Yes, indeed:

  • being trafficked into engaging in prostitution under brutal circumstances
  • being the victim of ‚dirigistive‘ pimping
  • being sexually assaulted
  • being kept prisoner in an apartment
  • ….

…. is no longer being the victim of a brutal crime. No. It’s a “work accident“. And we are supposed to celebrate this and to applaud this “breakthrough“ in “sex workers‘ rights“.

Indeed. The more academic pro-sex industry advocates and the self-defined “supporters“ of trafficked women are celebrating (or not) a court decision.

The background, and also the impact will be difficult to fully grasp for those who are not aquainted with German “culture“ and German legal approaches or how the insurance systems work. Not being aquainted with how we rely on beaurocracy, administrative processes and legalistic definitions when it comes to ignoring or engaging in or profiting from human rights abuses means you have good chances of having retained basic common decency. In any case – subtlety would be wasted here.

The situation:

A young woman from a non-EU country answers an ad for “work“ in prostitution to finance her studies at home. So she knew it would be prostitution, but she had no idea of what that means in countries of free häppy sexwörk.

Half of her earnings would go to her “employer“ who would supply her “working clothes“, shelter / appartment (i.e. the rather obscure short lease appartments in which the bulk of prostitution happens in Germany), and advertising. He would also “look after the paperwork“ – i.e. confiscate her documents.

She had to be at the “escort services’“ disposal for 24 hours a day, and an employee by this “employer“ kept control of her for 24 hours/ day. He took her to appointments, clubs and these appartments. He also assaulted her sexually and forced her to engage in sexual acts on him against her clearly stated will. In normal and decent societies this is actually called rape, but we are talking about Germany here.
He then locked her up in an apartment and on an internet website the young woman found a report by another young woman who had had identical experiences with this pimp. (Sorry, Germany – he is an employee and an agent, no doubt, probably unlawful to call him „pimp“. Or rapist.)
She panicked and jumped from the window. She sustained very serious injuries to both her legs and to her lower back.

The court case:

In the wake of legalising/ decriminalising the last remaining obstacles to free and unfettered investment into the sex industry German laws on trafficking and on pimping had to be adapted. After all, the sex industry would be hampered by having “operational aspects“ of the sex trade criminalised. So these activities were practically decriminalised, too – with a pretty provision that (of kors!) exploitation and coercion would remain a criminal activity. Exploitation wasn’t defined, so it can’t be proven … some courts have established via case law that arrangements might be deemed exploitative if the pimp (sorry, agent) gets more than 50% of the woman’s earnings (after she has paid for the rent and whatever), but then the second barrier remains: Coercion, which needs to be proven and which will only be accepted by courts as such if the victim either had fetters on her feet or a gun held to her head 24 hours/day (in practice, they word that differently). In other words, it can’t be proven, as hundreds of thousands of rape victims in our country can testify to. (Who, acccording to our courts, aren’t rape victims, just the victims of misunderstandings.)

So the young woman’s chances of getting a criminal case against her torturer(s) are zero.

In addition, she was and is afraid of the pimp (and still recovering from these awful injuries) and so she didn’t want to face him in court. And so the case was dropped. So he walks free and it would be slander and defamation to call him pimp or rapist or exploiter.

And the “advocacy groups“ nod wisely and say this often happens, after all they have by now moved even beyond the requisite crocodile tears around this, well nothing to be done, so let’s look at forms of “compensation“. One possibility in theory is the “victims‘ compensation law“ which requires around 50 forms and works on the same definitions as our criminal law, i.e. useless. After all, didn’t she come to Germany voluntarily? Wasn’t she alone when she jumped? Didn’t she panic voluntarily or made the decision by herself to jump from the second (AE: third) floor? Could she not call somebody for help via Internet? (As a foreigner who didn’t even know the emergency numbers.) Or scream from the window? (As a woman who didn’t know where she was and had no way of knowing whose side the neighbours would be on.) Was there never a moment when she could have run away? Survivors of the sex trade, hundreds of thousands of rape victims in this country, and the same number of victims of stalking, of “domestic violence“ and all of those who work in these areas can give the appropriate answers to this. And not a single one will be listened to. When it comes to sexual violence, and to sexual exploitation, women are on their own. Not just in this country, but this country certainly serves to illustrate how the sex industry needs and thrives on a definition of crimes against women that legally defines the violence out of existence.

However, this is where the Hamburg Court on Social Affairs comes in … and where things become as ghastly as they become tangled.

Ghastly:

The violence that is prostitution has now been officially declared – “accidents“. A work accident. Just an accident in the otherwise smooth running of the trade that is prostitution. As a bitter aside – will other women, rape victims, be able to claim these sorts of benefits? After all, rape is a daily, hourly side-effect of a smoothly running patriarchy – why not just accept that, arrange for a socially acceptable covering of the more immediate costs, and get on with it? (Oh, wait …)

First – what will the young woman get? She’ll get the covering for her medical bills and as this insurance operates partly the way private insurance does, she’ll be able to get thorough medical care (hopefully). At the same time this is no money she can use for herself and it largely (and rightly) serves to deliver her country of origin to which she has returned from footing the bills.

She may get some money to maintain herself during her recovery, i.e. during the time her “inability to engage in her profession“ is accepted. Then? Nothing, once her back heals she will probably have to prove (to a German health office) that she still can’t do any “sex work“ or the funds will be stopped.

She could certainly get a certificate for “inability to engage in her profession“ due to trauma. She will be able to get that because there are people out there who see prostitution for what it is. No thanks to the pro-sex industry advocates.

What does it mean in terms of prostitution?

It means that the legal approaches in Germany have manoeuvered advocates – both pseudo and genuine – into such a corner that even the chance at minimal forms of “compensation“ comes at the price of normalising and accepting the violence in prostitution and around it. Because this is what it means: Abandon all hopes of criminal law, abandon all hopes of real compensation, of a change in laws to name the violence, to call it out – we regret the situation, but for many reasons this can’t be changed, and well – shit happens, all forms of employment, of work, carry risks, so let’s delegate it to an insurance matter, fully equipped with a reference number and clear administrative, beaurocratic procedures.

Of course we all want this woman to have at least the bills covered. Of course we all want much more for her. And there is no reason why Germany as a state should not be made to pay compensation to every woman in prostitution here. (And believe me: That would be the one demand to spin Germany as a state into action.)

What a price to pay. What an ugly form of coercion, of extorcion, against all of us. Yes, you can have some money for this woman – at the cost of buckling down everywhere else.

Oh, of course we’re going to be lectured. After all, she can still charge her oppressors – except, see above, she can’t. After all, fighting for this kind of compensation does not preclude a struggle against ‚trafficking‘ – except that all of the pro sex industry advocates and academics dominating this field in our country never ever tried to fight trafficking, never ever proposed any measure about it except re-defining and legalising it. And except for the fact that now our collective conscience can be laid to rest – see, it’s covered, she’ll get some money, so shouldn’t we just focus on that and leave the rest to itself?

Tangled:

The jury is still out on the overall meaning of this court case, and the pro sex industry advocacy groups may rue this “victory“. The court (and the lawyer from the pro sex industry advocacy group) were quite understanding of the demands of the industry and their fellow lawyers, judges, courts, side-stepping all of the criminal aspects of what had happened to the woman except for the fact that she didn’t have the proper papers. The court did however rule that the woman’s situation in her “work“ was that of “dependent“ employment, that she was not, in fact, an “independent worker“ or “self-employed“ or an “independent contractor“. Wow. In Germany, this recognition deserves a special marking in our legal calendars!

It’s this part of the decision that will have – may have – at least a transient impact. Because the “working conditions“ described in the court case are very likely to be those of most of the women especially from abroad in prostitution in Germany. And while our wonderful laws decriminalising almost all forms of pimping and many of trafficking for the purpose of sexual exploitation mean that the victims of this violence are on their own regarding criminal procedures, this court has now established criteria of what counts as “dependent“ work irrespective of a victim’s testimony.

As a consequence every woman “working“ under the circumstances described here – EXPLOITED – under the circumstances described here – is now eligible to benefits under the laws regulating “work accidents“. And those laws cover costs regarding therapy for trauma.

The “employer“ will now retrospectively have to pay the insurance contributions – good luck with that one. Insurance for “work accidents“ is mandatory in Germany, and it is employers only who pay into it – this is organized by various insurances, one for each “professional asscociation“. Since nobody knew where to put “independent“ “sex workers“ they were lumped in with the “Verwaltungsberufsgenossenschaft“ – “Administration Insurance Association“ – artists and other people in the so-called “free“ professions take their health and retirement insurances here. It is this association’s insurance that will now have to cover the costs by the young woman’s “accident“, and it can look to many other claims to come … although we are not going to hold our breaths regarding the lawyers for the “sex work“ advocacy groups coming forward to help any victims. The insurance is going to be livid, so is the “professional association“ of artists and other free professions, as this means huge costs.

This is the one good thing about this abysmal definition of serious crimes against a woman and of serious human rights violations as “accident“. The myth of the häppy independent sex wörker has taken a serious dent, confronted with what really goes down in this glossed over trade. And the costs incurred as of yet by the prostituted alone and by their countries of origin, should these even bother, is now being presented to a larger part of German mainstream society.

What now?

Where does this leave us, as abolitionists? With the understanding, again and again of why “regulation“ is wrong, why it only serves to encode human rights abuses into accepted legal practice. Why it creates at least as many problems as it seeks to solve.

And with three possible routes in this our country where exploitation is regarded as well-oiled machines are – smooth and please! – sustainable!

We can now take the covering of the costs of the damages and crimes by insurances at the price of accepting the violence and crimes as such. We can just wait out the definitions to come – the flexibility of the sex trade and its advocates that will ensure that this remains a single case, and that will ensure any possible costs will be delegated to the prostituted asap.

Or we can insist on abolishing this entire business and by criminalising it ensure that its victims can indeed take the criminals to courts that are willing and able to recognize the violence and the crimes.

On taking Germany to international courts. On having the sex industry and the entire system of prostitution regarded as a human rights violation. And on insisting on compensation for the victims – by the state that has applauded, legalised and guaranteed this exploitation.

At the same time we can insist on a reform of our “victims‘ compensation law“ in a way that sees violence against women (or others) for what it is, and for laws that understand that “voluntariness“ or “coercion“ are irrelevant in the context of exploitation and violence. And that do not base their view of “exploitation“ on what has become to be accepted by our law and law enforcement in prostitution, but by – common decency.

———————————

The (anonymised) version of the court case has been uploaded by a website calling itself grundundmenschenrechtsblog – human rights blog – that is clearly pro sex work.

http://grundundmenschenrechtsblog.de/wp-content/uploads/2016/08/Urteil-SG-HH-vom-01072016-Prostitution-und-Arbeitsunfall-SGB-VII-anonymisierte-Fassung.pdf

The sloppily written article on this case is revealing in how the dominant discourse, i.e. the framing of “sex work“ in Germany obscures trafficking, pimping and sexual crimes. (Referring to the article as it was published on the blog on 18 August 2016, 8 pm.

Since banishea ries to avoid linking to pro prostitution advocacy sites, googling „Sozialgericht Hamburg“ „grundundmenschenrechtsblog“ and the index number for the case “S 36 U 118/14“ will help any interested (German speaking) parties find it.

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