This english translation of our Response to the Bundesrat is provided by Matthias Lehmann, from Research Project Germany. You’ll find his original post in his blog. We thank him for translating and sharing it here.
BesD responds to Bundesrat
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.