Prostitution law in Germany: Regulation for taxation

Francine Sporenda interviews Inge Kleine, a German feminist activist, about recent developments in the sex industry in Germany. The background is that in 2001 Germany passed new legislation around prostitution, called the Prostitutionsgesetz. It was implemented in 2002 and opened up and liberalised the law around prostitution, which was already legal. The prostitution law has now been tightened up, ostensibly to alleviate some of the negative consequences of the 2001/2002 law. But of course this is not the whole story, as Inge explains.

Traduction Française

FS: A law was passed in 2017 to correct some of the negative consequences of the 2001/2002 law, but a number of critics consider it a bureaucratic monster and mostly useless. What do you think?

IK: The law is called Prostituiertenschutzgesetz – ProstSchG – which means ‘prostitutes’ protection law.’ It was passed in October 2016 and came into effect on 1 July 2017. But because many municipalities had not yet implemented the necessary infrastructure, there was a transition period of one year to give time to prepare for the changes.

I can’t say if it is a bureaucratic monster. It might possibly help some trafficked women from Eastern Europe, as they can now have counselling and there are numbers they can call to get information and make contact with German officials.

There have been a few cases in Munich where service organisations have been contacted about what appears to be coercion during the mandatory health counselling sessions. These sessions are discussions about health – they are not mandatory health checks, although people do get confused about this.

After the health counselling session, women have to register at the municipal offices. The health counselling is annual, and the registration has to be renewed every two years. Data will be deleted after two years, if women don’t renew their registration. Those between 18 and 21 years of age need to show up at health offices every 6 month and renew their registration annually.

It may possibly help EU citizens in prostitution prove how long they’ve been, and worked, in Germany, and this may make it easier for them to receive welfare and other forms of social support.

The law also means that cities, municipalities or states, must provide some kind of counselling for those in prostitution in addition to the mandatory health counselling. This means that woman should be able to access support services of some description.

But it is also a worry because most of the existing services for those in prostitution are run by the pro-sex industry lobby. They’ve begun to clean up their websites, but until recently they openly stated that they lobbied to have ‘sex work’ recognized as regular work. Some also said they provided help for women to enter prostitution – while not mentioning services for women who wanted to exit it.

The law has no provisions or funding for exit services and it’s up to the states or cities to provide them.

What we are left with is that condoms have been made mandatory, and refusal to comply carries serious fines, to be paid by the buyer. The idea is this will help women insist on condoms. Survivors tend to support this aspect of the law.

Finally, the law also has provisions regarding pregnant women. Registration will be withheld in the last six weeks of a pregnancy. The sad hope here is that welfare offices will support a pregnant woman wishing to exit or not to engage in prostitution. We know from statements during government hearings that even in late pregnancy, welfare payments were withheld from women and doctors had to supply statements to courts that prostitution in the last weeks of pregnancy is unconscionable.

In fact women attempting to exit prostitution are often faced with these kinds of obstacles – welfare/social support officials do not believe that they have exited, and simply deduct an amount from the minimum support they are due.

As an abolitionist, I think the law has two major aims. Firstly to make it possible to collect at least some data about legal prostitution in Germany. In 2016, Germany could not even roughly estimate the number of women in prostitution. The figure of 400,000 kept being circulated, but there was no clear basis for this. In the press, numbers ranged from 90,000 to 900,000. This was ludicrous and of course embarrassing, given that Germany bases its justification for its legalized and partly decriminalized approach on the idea of transparency and politicians and others argue against the Nordic Model by citing the allegedly clandestine nature of prostitution in Sweden.

The second aim, which I agree with other abolitionists like Huschke Mau, is the main aim, is to make it easier to collect taxes and to make women pay into the social security system and health insurance schemes. In this regard, the ProstSchG follows the true aims of the 2001 Prostitutionsgesetz – which was sold to the public as an attempt to destigmatise the women in prostitution and to make social benefits accessible – but in fact was centred round women paying into these schemes.

The 2001 law was passed at the same time as other laws in Germany that slashed the welfare system and introduced significant changes to married women’s pension rights, in effect slashing these too, in order to make them take up work and pay into the system (or lose their rights to a pension). It was part of the austerity ideas called Agenda 2010 by the then Social-Democrat and Green government.

The current law continues in this vein, as the mandatory registration now also means data for the tax offices. The taxes are: income tax, VAT (on the services rendered, i.e. 19% on what the buyer pays), and via brothels, cities can levy additional taxes (sometimes called Vergnügungssteuer which means entertainment / enjoyment tax). This latter tax is significant for cities, and generates up to €600,000 a year in places like Düsseldorf – although this figure includes taxes on strip clubs.

Brothels get the money from the women via the rent for the room. They also collect a sum towards the VAT obligations via the rent. This means that in Germany brothel keepers operate as tax collectors. (You read that right.) The women are supposed to keep a clear record of all punters and earnings, and of the receipts provided by the brothel keepers, and to submit this paper work to the tax offices as part of their tax declaration.

In practice tax debts in Germany are a major barrier to exiting prostitution. The new law has made that worse, by making it more systematic.

Other provisions include stiffer regulations for brothel keepers and those running prostitution venues. Anyone renting out space for the purpose of prostitution is now deemed a holder of a prostitution venue – with the exception of someone engaged in prostitution alone from her own rented or owned space.

There are also regulations regarding hygiene (the details vary in different German states), and those working there, from bouncers to the licence holders, must submit a criminal record certificate which for the first time bans those with convictions for trafficking or ‘forced prostitution’ from running brothels. Brothels must also allow visits by social workers and have some sort of safety system.

The regulations are less strict for apartments, where probably the majority of prostitution happens, and where many of us believe most human trafficking victims are, and where most violence happens – just as most violence against women takes place in the home and private houses and flats.

Other regulations intended to protect the women (or others) in prostitution are backfiring. Now women must have another place to sleep besides the brothel room where they see the buyers, so now they need to rent and finance additional space elsewhere. They must also be in possession of some kind of permanent address where they can receive mail. Already lawyers and similar people have stepped in to provide a kind of post box address for them for a fee.

On the last page of the law you can find information that regulations regarding advertising for prostitution are now abolished. There is no prohibition of advertising anymore, except for those falling under the ‘protection of minors.’ So the industry can in theory advertise even more widely than before.

Zoning regulations still apply, and it’s still the women who pay for failure to comply. Fines are between €250 and €500 and failure to pay or being found in violation again means jail. A few places have implemented regulations against touting or soliciting directed against the buyers, so the buyers can be targeted too, under the municipal jurisdiction. The fines for violation of zoning are a federal matter. (Munich for example has very strict zoning regulations, and they are strictly enforced. Berlin has none – and it also has one of the most exploded markets and worst conditions.)

Abolitionists are somewhat split on the issue – I view the law as a problem and just more evidence that prostitution is so toxic that any regulatory intervention is harmful. Like all forms of regulation, it only serves to inscribe to what degree Germany will tolerate human rights abuses.

There is something very German about the conviction that all it takes is a thorough administrative approach, and that if something is well-organized and the administration around it is good, the human rights abuse at the centre can be ignored.

Others, including abolitionists, stress that it has made brothel keeping harder, and it is true that in Munich two very sleazy venues have now shut down. They stress that at least the buyers are mentioned and pay if they don’t use condoms. Support workers have much better access. It is also making the costs of prostitution more visible to the cities and the public, and that is a good thing.

My final point is that the worst kind of prostitution is here too, the illegal kind, and that is prostitution by women who have no legal right to stay. Those would be Eastern Europeans from Non-EU-countries, Ukraine, Russia, and women from Nigeria, South America, and Asia (roughly sorted by numbers). They are beyond the scope of the law, as they cannot register, obviously.

The lobby of ‘Klub Artemis’, Germany’s largest brothel, in Berlin. EPA/Marcel Mettelsiefen

FS: Are there some positive sides to this law, and if so what are they? (For example, that a permit is necessary for opening a brothel, pimps being penalized even if victims don’t testify in court, suppression of the ‘right of direction’ of brothel managers to prostituted women)?

IK: About the positive sides, see above, partly. The right of direction, or ‘limited right of direction,’ is the brothel manager’s right to give orders to the prostitutes in the brothel. It’s scandalous but it hasn’t had an effect on how prostitution is organized here, because it only applies to women in prostitution who have signed an employment contract – because the numbers are so small.  Apparently at some point, there were 44 people in the whole Germany (including one or two men) with an employment contract.

Basically, the brothels operate like hotels, and the women rent rooms and comply with hotel regulations. And it is justified by saying that it’s a free country and if they don’t like the regulations, they are welcome to leave. It’s true that brothels can no longer prescribe the clothing for the women, and gang-bang offers and flat rate offers are now illegal. But the wording of the law is a very vague – it’s not even clear whether it’s the advertising of these practices that is illegal or the practices themselves. Brothels may no longer set prices, women (who often don’t speak German) are meant to negotiate these now. Before, some brothels had laminated ‘menus’ with photos of sex acts and prices, and the buyers would point to what they wanted.

Pimps being penalized even if the victims don’t testify is not a part of the ProstSchG. It’s part of the law on trafficking that was also passed in 2016 after pressure from the EU because Germany ignored the 2011 EU directive on trafficking. Whether it will help, remains to be seen. Germany has a very narrow legal definition of what constitutes ‘force’ and so things remain very hard to prove.

Regarding the permits that are now necessary, again there are two sides.

On the one hand, the sleazier places go down. Many apartments and mini-brothels are closing as they have to be licenced and registered. While I see the good side of this, it means a concentration of the industry both in terms of sites (mostly industrial areas) and in terms of businesses. The larger brothels like Pascha or Paradise or Caesar‘s World have no problems meeting these regulations, while the smaller ones go bust. In a way, the ‘middle tier’ of prostitution is targeted most. However, that was also the case before as the ‘studios’ could not compete with the much cheaper offers in the brothels, or on the streets. The people who gain from all of this are the owners of huge brothels.

And of course, the public is made to think that matters are well regulated now, and everything is fine. And of course it isn’t.

FS: This law is supposed to penalize johns if they are aware that the prostituted woman has been trafficked. Also, an interview with prostituted women is supposed to assess if registered prostitutes are trafficked. Is it realistic to think that there is a sure-fire way to know if prostituted women have been trafficked and that the johns will really try to find out?

IK: Of course not. Police and serious advocacy groups all agree that identifying trafficking victims is hard, and it is often almost impossible to prove trafficking. It’s somewhat easier for the 18-21 age group, because getting a woman that age into prostitution or sending her to a brothel always counts as trafficking, so no special evidence of force is needed – which is why crime statistics show a higher result for this age group. The figures in no way show the true scale of the problem, only the fact that for some it is easier to prove.

Trafficking victims often blame themselves, or are trafficked by family members and feel some sort of obligation or solidarity, or they believe what the trafficker tells them about love, so they hide their condition, and many fear for their family’s safety.

There is no evidence that buyers concern themselves with trafficking or become active in this regard. I think a hotline in Scotland had only one man calling in the course of an entire year, and a campaign led by our government and implemented by FiM (Frauenrecht is Menschenrecht) for the soccer world championship in 2006 yielded poor results. From reading punter forums on the internet, we also know they’d never dream of contacting the police themselves. At best they make some vague comment about ‘somebody should be doing something.’ And they are worried about getting into trouble for having used the brothel.

We don’t even know what will happen if a woman is identified as a trafficking victim after having registered and received her papers, and if that will have any consequences for the office that gave her the papers. In such cases, state officials would in practice have colluded in the trafficking.

The threat of penalization of johns in such cases may have a disciplinary effect, but the wording is that the buyer ‘exploits her situation’ and under German law that means that he ‘knowingly’ exploits her. So unless she has shackles on her feet and records herself shouting for help, this is unlikely to hold up in court. If it even gets to court.

FS: The new law prohibits gang bangs and ‘flat rate’ brothels. But in fact, I have read that gang bangs and flat rates are still advertised on some sites. A German brothel called Erlebnis Wohnung is even specializing in gang bangs. What are your comments on that?

IK: We sometimes go through the websites and contact police about that, they write that down and can visit the brothel or demand the advertising be stopped.

It could alert police to take a closer look into compliance with other regulations, and in theory set the brothel up for raids. The same is true for advertising for sex without condoms.

We also contact the police when we find johns exchanging information where sex without condoms is still possible. They use code words of course – such as ‘Catholic service’ or ‘She’s a Catholic’ for sex without condoms, because everyone in Germany knows Catholics aren’t supposed to use contraception.

We have no knowledge what happens later. It would depend on police action. As I said, Munich is known to be strict. Civil society activists can use the law to make police exercise pressure on the brothels. But it requires political will and the city to provide resources.

FS: Also, the new law makes it compulsory for punters to use condoms. Is this rule really followed, and is it even applicable, taking into account that condom inspection is totally impossible?

IK: Basically it would depend on the brothel. There was a case just after July 2017 where a brothel keeper called the police after a john had stripped the condom off during the intercourse. He had asked around for sex without condoms and all the women had declined.

I don’t know what happened after that – his lawyer said he hadn’t known he was supposed to leave it on, and the state prosecution said he was in violation of the law.

The man concerned was an asylum seeker and my hunch is the brothel wanted to get rid of him (and other asylum seekers) due to racism. In theory, the law can help here – it is easier for women to insist (many johns in the forums were howling that they would now have to use condoms), and after all, if she wants to take him to court she would have the evidence inside her.

But then – who will use a woman in prostitution who is known to talk to the police? The official reasoning for this part of the law is that it is a strong signal to punters. Also, brothel keepers must advertise the obligation, and provide condoms.

FS: Could you tell us about the link between organized crime and prostitution, and in particular the role played by biker gangs in supplying trafficked women to brothels? Has the link between organized crime and trafficking been affected by this law?

IK: Police and law enforcement are unanimous that organized crime, both foreign and local biker gangs, are very active in prostitution and that they actually run it in many cities. The new regulations regarding brothel keeping are supposed to minimize this, gang members and those with a criminal record (including bouncers) are barred from working in the industry. It’s too early to say whether this has been affective – the law has barely been in effect for a year and some places had until July 2018 to implement it.

Police say their main problem is manpower, resources and the very few and minimal consequences in court. They spend years investigating, and then the accused walk free, or get fined, or receive short sentences, often non-custodial, such as probation. The other problem is the difficulty of providing the evidence of coercion.

Following the 2001/2002 law, our laws on trafficking and pimping were also adjusted. Pimping was decriminalized except for ‘exploitative’ pimping, but ‘exploitative’ was never legally defined. This means it was left to case law, which currently defines it as 50% of her earnings after paying for the room and the taxes. But this is hard to prove in a cash based economy. Besides she may have given it to him voluntarily thinking he’d pay it towards their joint future, or for the family back home.

But ‘force’ also has to be proven and one of the scandals is that it has such a narrow definition that it almost means a gun to her head 24 hours a day to make her stay in prostitution. Trafficking for the purpose of sexual exploitation has also been reworded, with the undefined term ‘exploitation’ everywhere. Whether the new trafficking law will help, remains to be seen.

The highest court of applied laws in Germany, the Bundesgerichtshof (BGH) has, however, decided that the situation for women in some villages or areas in Nigeria are so disastrous that they constitute ‘force’ in and of themselves, so women from these areas in Nigeria are considered trafficking victims even without testifying. This helps them secure a right of stay in Europe, but due to the Dublin Agreement they are deported to the country they first reached in the EU, usually Italy. And it is Italy where they were first pushed into prostitution, and where gang members are waiting for them, and where conditions are worse even than here.

Judging by current approaches by conservative parties and the police, I believe that if Germany ever institutes the Swedish approach, the legal justification will be neither ‘human dignity’ (which has such an individualized definition in Germany it is practically meaningless), nor ‘equality’ (which Germans don’t understand as a concept – after all it is legal for men to buy women…), but crime prevention.

As I see it, prostitution is like nuclear power – the industry is risky and harmful overall and it therefore needs to be abolished.

They do talk about exiting help for women, but what we are seeing and what worries me, is that feminist and genuine socialist analysis is receding and being replaced by a law-and-order or paternalistic approach. If that is the only way we can get the Swedish model, it’s better than nothing. Many who advocate for it from that point of view, like Manfred Paulus, are truly engaged and decent people, but as a feminist and a leftist, I am sorry to see our analysis being lost – which will mean that exiting help will be short-changed, and we will lose the chance of changing society and relationship between the sexes.

FS: How has this law affected the German mega-brothels and brothel chains like Paradise and Pascha?

IK: As I explained earlier, these huge chains are profiting as the competition from smaller brothels is knocked out of the market.

FS: Could you tell us about the experimental German online services, like Peppr and Ohlala, that use Uber-like technology to put punters in touch with prostituted women – allegedly without any intermediary. Do you think this will create a non-localized, worldwide prostitution market?

IK: I would have to do more reading on it – but my hunch is that these attempts over-estimate both the number of independent ‘escorts’ in this country and the johns’ initiative. Why use such apps if the brothel or street is round the corner, and if escorts advertise on brothel sites and forums or use their own websites?

As for creating a non-localized worldwide market – I can see how such ideas like Peppr or Ohlala could fill a niche, but not without an intermediary who organizes it, provides the ads, streamlines the offers, organizes complaints, etc. Anyway, Peppr or Ohlala would already be an intermediary.

FS: The goal of this new law was to moralize prostitution, so it would become ‘clean.’ What do you think of this notion of ‘clean’ prostitution?

IK: I can only resort to bitter, and embittered, sarcasm. Since this notion of ‘clean prostitution’ has been made popular by the Greens and many from the Left Party and the Social Democrats, we have begun to call it Bio-Prostitution, or organic prostitution with a fair trade prostitute, err ‘sex worker.’ It’s the logic of organic farming transferred to prostitution. But no matter how nice the farm is, in organic cattle breeding, pig-keeping and raising of chickens, the outcome is clear.

The new law aims at making prostitution slightly more sustainable as an industry and thus tallies with German approaches and convictions. Germany as a state believes in smooth administration and sustainable exploitation, but wrinkles its nose at the bluntness of Trump and the Thatchers and Reagans.

The notion of ‘clean prostitution’ is added violence – that of representation. When violence happens in plain view and under all our noses but is denied in the representation of the facts, it is utter cynicism. It is perfidious to report a violent act while denying the violence is there. It also camouflages power relations, those of men as a class over women, rich over poor, and white over racialised, centre versus marginalization.

The same rhetoric and tactics have been applied to legalizing child labour and surrogacy, and there are attempts to apply them to trafficking, when it is split into trafficking – which is bad, and ‘rational decisions using limited agency regarding micro-loans in the context of irregular work migration.’ It flows out of the triumph of neoliberalism in the 80s, when workers losing their jobs were described as ‘being set free from patronizing work relations.’ (Freisetzung von bevormundenden Arbeitsverhältnissen, Süddeutsche Zeitung.)

Only one of the original aims of the 2001 Prostitutionsgesetz has been reached, and it has never been stated – to provide a facade so that the enormous, hitherto illegal, profits from sex trafficking and from large scale brothel keeping could be made legal and invested in the general economy.

While pro-prostitution advocates point to Sweden and pretend it has such a large and dark underground prostitution system, Germany cannot even pinpoint the number of those in prostitution by six-digit numbers.

All the idea of ‘clean prostitution’ gives us is an exploded market. And that means an explosion of all the problems that lead to prostitution as a system and that are caused by it. Inequality between men and women is entrenched as every man who wants to prove a point can just go to a brothel and act out what comes to mind. As our state believes that men’s wishes are orders and that it must supply the corresponding infrastructure for men to find sexual access to women for a fee 24/7. Where this is celebrated, even.

Poverty as a pulling factor into prostitution is preserved – it is a resource for the sex industry. Depriving families, women, and children of help against violence and sexual abuse is a resource for this industry – look at our laws on these matters and their (lack of) implementation, and it is obvious nobody wants to deal with these things.

An exploded market of course means increased spread of STDs, including HIV and hepatitis, no matter what groups confabulate around it – a huge market is going to see more of this than a small one, irrespective of the measures used to keep it small. The same is true of trafficking and this has been proven.

And then, the quality, i.e. types of prostitution are affected, too. Due to facilitating sex buying and brothel keeping (which the 2001/2002 law provided, and the current law now makes more systematic), the bottom dropped out of this market. Like porn, it has become more brutal and cheaper, and easier for the buyers.

So whatever people say about this idea that ‘legal makes it safe’ is plainly wrong. It doesn’t, and it can’t, because prostitution needs violence to exist.

This interview was originally published in French on the Révolution Féministe website.

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