Legislation on sex work: Germany legalisation

Lilith Brouwers – 2017

Legal status of sex work:

Although sex work is legal in Germany, it is limited by a wide range of laws and regulations that prescribe who can do sex work and under which circumstances.  Central in this legislation are prostitution zoning laws (“Sperrgebietsverordnungen”) which limit the locations where sex work may be done, and which effectively render sex work illegal in many cities and communities. Full service sex work in Germany occurs most commonly in brothels , eros centres (Laufhouse – buildings or roads where sex workers can rent an apartment), escort agencies (Begleitagenturen) bars, street-based sex work (Straßenstrich), home-based sex work, massage parlours, swing/sex clubs and saunas.

Current legislation:

On January 1, 2002, the Law Regulating the Legal Situation of Prostitutes (Prostitutionsgesetz – ProstG) came into force in Germany. The goal was to improve the legal position of sex worker by making it a legal profession, allowing for contracts between employers and workers, access to employment benefits, and taxation from the government. However, most regulation of sex work is left to German states, allowing them to limit the locations allowed for legal sex work. This means that street-based prostitution is legal in less than 10% of towns and cities (and only in very limited areas), causing over 1500 people to be prosecuted each year for working in a criminalised location.

New legislation from July 1st 2017:

On July 1, 2017, the Prostitutes Protection Act (Prostituiertenschutzgesetz, ProstSchG) is planned to come into force. The ProstSchG states that every person who does sex work must be registered, and requires regular health consultations as part of the registration process. After registration a ‘sex worker ID’ will be issued, and sex workers are required to have this on them at all times while they are working. Additionally, prostitution businesses (like brothels), will require permits, structural requirements such as alarm systems and multiple bathrooms, and are not allowed to let workers sleep in the same room they work in. Finally, working without condoms will be illegal, and information received at registration will be forwarded to government bodies such as the tax agency.

At registration, sex workers are required to provide their full name, a registered address, date of birth, nationality/identity document/work permit, and two photos. Then a ‘personal information session’ is given, where rights and obligations such as taxes, health insurance, and counselling services are discussed. Additionally, in order to register a ‘health consultation’ is required yearly (twice yearly for sex workers under the age of 21), and a certificate which must be carried at work is given. Finally, after the health consultation and the registration, sex workers will be issued with a registration licence, or ‘sex worker ID’. This ‘sex worker ID’ shows a photo, name or artist name, birthdate, birth place, nationality, registered work place, period of validity, and where it  has been issued – and must be carried to work at all times. However, which local authorities will be responsible for the registration process is not defined by law and will be up to individual states.

Critiques of the ProstSchG:

Currently, under the Prostitutionsgesetz of 2002, 98% of the German population lives in an area where (street based) prostitution is legal. This is unlikely to change under the new Prostituierten-schutzgesetz, making it difficult for sex workers to work legally and may push them into working illegally. With this, all the problems of criminalisation rear their heads: fining and imprisonment of the most vulnerable of sex workers, police raids on independent sex workers and venues, fear of going to the police for help, risk of violence of exploitation, and the police collaborating with landlords to make sex workers homeless.

The proposed new ProstSchG is critiqued for not improving the work situation for sex workers at all, as illustrated by the Green party’s critique that “what is labelled as protection has to include protection”.  The law doesn’t grant any new rights or entitlements to sex workers or people affected by human trafficking and exploitation. Instead, it creates obligations and restrictions for sex workers, and grants local and national authorities more ways to control their work.

The new required registration process is critiqued for being invasive and unlikely to have positive results for sex workers. As local governments are not prepared for the number of registrations required in July, sex worker organisations to worry about waiting times and workers being forced into illegality. Some feel that the registration process has increased tax revenue as its main aim, since every registration will immediately be forwarded to tax authorities. Regardless of the legal status of sex work, it is a highly stigmatised profession and many German sex workers have said they will not register out of fear of losing their anonymity, possibly causing them to lose their livelihoods. Since the ProstSchG has such high requirements for self-employed sex workers and small businesses, many organisations expect self-employed workers to be pushed into illegality and increased vulnerability, and for small worker-led and women-led sex businesses to be forced to close. Additionally, the fact that registrations can be denied may be an infringement on the constitutional right to freedom of vocational choice.

National health organisations warn that the proposed health consultations abolish the principles of anonymity and voluntariness in sexual and reproductive health care, and that the ProstSchG will make healthcare into a method of control and repression. Other critiques of the consultations are that since local governments are not yet prepared for the medical consultation, it is unclear if there is enough medical staff available to do these consultations, and that individuals affected by trafficking are not likely to disclose this in a single short conversation with a government authority.

In addition, the legal status of the ProstSchG with regards to personal data protection and human rights is questioned. Due to the vague wording of the ProstSchG, the registered data of sex workers can be shared with third parties without consent, which may undermine European human rights law and the German constitutional right to the inviolability of the home. Especially the recording of personal information in connection with information about a person’s sexual life is likely to be in violation of European human rights law. Since data protection is never 100% safe, a break in security (or lost/stolen registration document) may cause sex workers to be a victim of blackmail or stalking.

Finally, the ‘sex worker ID’ sex workers are required to carry on them at all times at work is critiqued for being a danger to sex workers. Sex workers often need to be able to work under several names, and a range of ages and nationalities. For a sex worker to carry a document with a significant amount of personal information, means this information could become known to their clients or strangers. The danger of legal names on the ID is even larger for transgender sex workers, and even if an alias is used the rest of the personal information on the ID puts sex workers at risk of outing, stalking, blackmail, or violence.

Sources:

http://www.sexworkeurope.org/sites/default/files/userfiles/files/ICRSE_Overview%20of%20the%20German%20Prostitutes%20Protection%20Act_May2017_EN_02.pdf
http://www.hydra-berlin.de/sexarbeit_von_a_bis_z/infos_zum_neuen_gesetz/information_about_the_new_law/
http://www.huffingtonpost.com/katherine-koster/legal-in-theory-germanys-_b_8037820.html
http://www.sexworker.at/phpBB2/download.php?id=1038
http://www.sexworkeurope.org/news/general-news/sex-workers-rights-day-icrse-launches-briefing-paper-germanys-new-prostitutes
https://www.bmfsfj.de/bmfsfj/themen/gleichstellung/frauen-vor-gewalt-schuetzen/bericht-der-bundesregierung-zu-den-auswirkungen-des-gesetzes-zur-regelung-der-rechtsverhaeltnisse-der-prostituierten/80764
https://www.opendemocracy.net/beyondslavery/sonja-dolinsek/sex-workers-fight-against-compulsory-registration-and-identification-in
http://www.datact-project.org/fileadmin/user_upload/pdf/Marjan_Wijers.pdf
https://www.djb.de/st-pm/st/st15-10/
http://berufsverband-sexarbeit.de/stellungnahme-des-besd-zum-referentenentwurf-eines-prostituiertenschutzgesetzes/
http://berufsverband-sexarbeit.de/entkriminalisierung-legalisierung-legale-anerkennung-sexarbeit-und-gesetz/
http://www.donacarmen.de/pressemitteilung-stadt-muenchen-zwingt-sexarbeiterinnen-in-den-untergrund/