By Elly Arrow

This article looks at evidence from Germany and New Zealand that legalising or decriminalising the prostitution of adults creates a façade behind which the prostitution (or paid rape) of children can thrive, and weakens men’s individual and collective resistance to sexually abusing children. This suggests that opening up the commercial sex industry will always have profound child safeguarding implications – and gives the lie to assertions to the contrary.

“Any brothel receptionist will tell you that the most common question punters ask is how old is the youngest girl. And they always want the new girls. They like them as young as possible because they are easier to manipulate into doing things they don’t actually want to do.” – Jacqueline Gwynne

Note: Under international human rights law, a child in this context is anyone younger than 18 years, and any third-party involvement in a child’s prostitution automatically falls under the definition of human trafficking, regardless whether any force or coercion was involved.

Children in the legalised regime in Germany

Teenyland is a brothel in Cologne. Its USP is that the women, nicknamed ‘lolitas,’ are all aged 18 or 19, some still at high school, some “only a few days legal.” It is just one of many brothels in Germany where women have to pretend to be children that punters abuse, but it is the most blatant.

It should not surprise us that participating in such playacting can cause young women extreme distress and psychological damage – especially when we consider that research and survivor testimony show that women involved in the sex trade are disproportionately likely to have been sexually abused as children themselves.

It’s claimed that allowing men to playact child sexual abuse (CSA) in this way provides an ‘outlet’ that makes them less likely to sexually abuse actual children. However, the evidence suggests the opposite – that such practices strengthen and reinforce the punter’s sexual response to prepubescent or adolescent children and weakens his resistance to acting on that sexual response.

If seeing a TV ad about a car makes you more likely to buy that car, we can only assume that viewing porn that shows the sexual abuse of children inevitably increases the risk of children in the community being sexually abused. Paying to sexually use and abuse real (or pretend) children in prostitution is likely to have an even stronger effect.

The presence of Teenyland and similar brothels certainly hasn’t kept children out of Germany’s legal brothels. At least nine mega-brothels have been busted for child sex trafficking, and many more cases are likely to have flown under the radar.

It’s usually assumed that legalising the sex trade means the authorities have a clear overview of the market and detailed knowledge of who is prostituting whom, why, where and how. But that’s not how it works in practice.

Until recently, German authorities collected almost no data on the prostitution industry. For example, there was no attempt to track the locations of the apartment brothels nor the constantly changing roster of women on offer at the mega-brothels – even though this information was available on the Internet (because that’s how the punters find them). There was simply a lack of political will to track this data. No one even knows how many people are in prostitution in Germany, and the numbers quoted range from 200,000 to 400,000 or more.

A new law was passed in 2017 with the ostensible aim of correcting some of the negative consequences of the 2001 law that opened up prostitution in Germany to the full fury of market forces. Brothel operators and individuals in prostitution now have to register with the local authorities. So far roughly 1,600 brothels have registered and 33,000 individuals – of whom 76% are 21-44 and 6 % are 18-20. This leaves an estimated 167,000-367,000 people unregistered and an unknown number of brothels without a license and operating illegally, with no government oversight of any kind.

Social workers overseeing the registrations have reported that pimps can often be seen lurking outside the office, waiting for the women and taking them away afterwards – which illustrates that the registration system does little to protect women from pimps.

The majority of the market remains in the dark and registered establishments are still not subject to routine controls. While it is now easier for the police to carry out brothel raids, prosecutions against traffickers still require victims to come forward, which many refuse to do for fear of reprisals, for example. Police investigations into pimping, trafficking and the sexual exploitation of children are currently declining – even though there is no evidence that these crimes are in fact decreasing.

While Germany is called “the brothel of Europe,” Switzerland provides stiff competition. Third-party profiteering from prostitution along with prostitution-buying have been legal in Switzerland since 1992, and even pimping and paying to rape a child of 16 or 17 were completely legal right up to 2013.

What do the punters (johns) say?

According to a Canadian study 15% of men who pay to sexually access adults in prostitution, would also pay for a child. Punters in Germany and Switzerland talk freely about this on the punter forums. Here are a few examples (edited for length):

“I had a few [girls] who supposedly were 18. I let one show me her ID, because she was demanding quite a high price and she justified that with her young age. 18 years and 3 weeks. Can’t get much younger than that. Privately the youngest one was 16 going on 17. I was 28. She pretended to be 18. Too bad, I would have enjoyed the countless inseminations even more had I only known.” – German john, 2018

“There was this girlie of 13-14 years, very childlike. She hadn’t even developed breasts yet and was totally hairless. Her hole was super tight and I couldn’t penetrate her deeply. I hurt her and she pushed me off. Other than that, I was allowed to do anything I wanted to her, whatever came to mind.” – Swiss john, 2016

“The girls there are very pretty. Unfortunately, one slightly injured my precious nuts, because she wore braces. Got nothing else to complain about except that some girls looked like minors, but never mind.” – German john, 2018

But is it any better in New Zealand?

Heralded as revolutionarily different from German and Swiss style legalisation, decriminalisation of the sex trade was introduced in New Zealand (NZ) in the Prostitution Reform Act 2003 (PRA) and many people hold it up as a better alternative. But what does it mean in regards to the paid rape of children?

The NZ government’s 2008 review of the PRA is often cited as evidence that fears about increased sex trafficking of adults and children have not materialised. But in fact the review raises significant concerns about children exploited in the NZ sex trade.

Although the review committee states that it doesn’t consider sexually exploited children to be “sex workers,” they do in fact refer to them as such in their report.

It’s not a surprise therefore that they refer to those paying to rape these children as “clients” rather than clearly naming them as rapists. If they had named them as rapists, it would have begged the question of what to call men who pay to rape sexually exploited children after they turn 18, or adult women who have been coerced by pimps or financial desperation – and the whole house of cards might have come tumbling down.

The report acknowledges that gathering data on sexually exploited children is always difficult, but that it has got worse under the PRA, not least because there are no systematic efforts to collect such data. Surveys by support agencies disagree about whether there’s been an increase in the prostitution of children, but the report concludes that there hasn’t been. However, the 2012 US Trafficking in Persons Report calls out New Zealand for lax laws regarding human trafficking and warns about the sexual exploitation of children – especially those of indigenous descent.

It is difficult to enforce the law against the prostitution of children:

“Police officers may request, but have no powers to require, age identification documentation from a person they suspect to be an underage person providing commercial sexual services. Police reported that this makes it difficult to proactively protect young people who are involved, or at risk of being involved, in underage prostitution.” […] “Police report difficulties bringing prosecutions relating to the use of under age people in prostitution.” (Page 109)

Sentences for these offences against children are lenient. Although the PRA increased the maximum sentence for paying to rape a child from five to seven years, the longest sentence handed down up to 2008 was only two years and the majority of sentences were mere fines, supervision, community service, or home detention.

Prosecutions are low because the PRA presents real practical barriers to identifying child victims. For example, the police may not enter a brothel without a warrant even if they suspect a child is being exploited there – although they may enter without a warrant to check the establishment’s liquor license.

These measures were designed to decrease opportunities for the police to abuse their power over the women. However, there was no attempt to decrease opportunities for pimps and brothel owners to abuse their power.

Health inspectors are meant to monitor working conditions in brothels and compliance with health and safety standards (although how they are expected to check for compliance with the requirement for condom use is unclear). But it is not their responsibility to verify the age of brothel workers, nor could they if they wanted to, because brothels are not required to keep such records. And anyway health inspections are few and far between.

Even though the study that informed the PRA documented the severe economic desperation of many women in prostitution, the decriminalisation model does not consider poverty to be sufficiently coercive to constitute “forced prostitution.” The review committee only considered the conditions for “forced work” to be met when the victim reported pimp control. They ignored the many ways in which pimp control can be subtle and how victims often cannot recognise the coercion involved.

The decriminalisation model works on the false assumption that the majority of people in the sex trade are consenting adults and that anyone not adult, not consenting, or whose human rights are violated in any way, can turn to support services or law enforcement themselves, or someone else (presumably a punter) will inform the authorities on their behalf – in spite of all the evidence that this is unlikely.

The reviewers even acknowledge that there are problems with waiting for a child to cry for help:

“The prosecution is reliant on under age people giving evidence in Court as witnesses. Under age people may not wish to co-operate with a prosecution as they wish to continue providing commercial sexual services. It is also important to note that under age people may not often see themselves as victims and will therefore not make a complaint.” (Page 109)

But in spite of all of these structural flaws, licensed brothels and strip clubs must pay tax. This means that the NZ government, like the German government, benefits financially from the exploitation of the prostitution of children and vulnerable adults – in violation of obligations under CEDAW. Or to put it more bluntly, the NZ and German governments are pimps and facilitate sex trafficking.

Vested interests and policy capture

Law and policy makers have a duty to ensure they act dispassionately and are not held hostage by those with vested interests, and that they don’t leave gaps that allow vulnerable people to be exploited.

The New Zealand Prostitutes Collective (NZPC) positions themselves as the definitive voice of people in prostitution in NZ while advocating for the full decriminalisation of all aspects of the prostitution industry. The NZPC has been criticised for denying the harms intrinsic to prostitution, hostility towards anyone who disagrees with their position, and for not providing exit opportunities for women and girls wishing to leave the industry – which can have the effect of prolonging involvement in the sex trade.

The review committee appears to have been taken in by the NZPC:

“In relation to street-based under age prostitution, the NZPC does not believe that increased arrests of clients by Police are an appropriate solution. The NZPC argue that increased arrests will merely drive young people somewhere less visible (and consequently less safe) and will not significantly decrease demand.” (Page 110)

Is it conceivable that a formal government review body would report a lobby group’s recommendation that legislation on any other violent crime against children should not be enforced? Let’s try that statement out with another violent crime against children:

“In relation to child battery, the NZPC does not believe that increased arrests of adults who beat children by Police are an appropriate solution. The NZPC argue that increased arrests will merely drive battered children somewhere less visible (and consequently less safe) and will not significantly decrease the crime of child battery.”

How about adults giving drugs to children? Does heroin become any less harmful when the victim is lying in a drug den rather than by the street?

How could the review committee not see the NZPC position as cruel, profoundly irresponsible, and in violation of safeguarding standards? It seems incomprehensible. Until, that is, you understand that the NZPC were an integral part of the review committee itself:

“The NZPC collected information, partnered on the research team appointed by the Ministry of Justice to conduct the research, and ultimately secured seats as evaluators on the Prostitution Law Review Committee charged with assessing the research and making recommendations.” – Janice Raymond

It is true that various anti-violence laws when inadequately approached by law enforcement and institutions can harm victims – but the answer is not to decriminalise the crime, but to improve the training of law enforcement and related services, and to implement preventative measures.

Trends in prostitution-related organized crime are visible to the trained eye by observing the conditions of prostituted women on the streets. One such trend is that pimps and traffickers are not discouraged by legality (quite the opposite). Residents and outreach organizations in NZ report that despite the PRA, horrific crimes against adults and children persist in street prostitution, often in plain sight.

The review committee concluded that the PRA has not encouraged children to enter the sex trade, as most are still primarily motivated by economic desperation, rather than apparent glamour (p. 104).

However, sex trade survivors have long pointed out that narratives in the media and wider society, and how the law frames the issue, do influence children (and adults) and play a role in their entry into the sex trade – even though poverty and discrimination are also factors.

What sex trade survivors say

During a 2018 event, prostitution survivors described how the media and legislation normalize the sex trade in the minds of children and young adults. Sandra Norak, a German prostitution survivor, now law student, who was first introduced to the trade as an 18-year-old explains:

“When this loverboy took me to the brothel for the first time, I just wanted to run away. I was young, unstable and didn’t know what to do. And I didn’t know what kind of dangerous situation I was in.

He said: This is all completely normal. That’s the key word: Normal. Prostitution – supposedly – is normal and a job like any other.

From the perspective of my government, prostitution in our country is just a job. Pimps and brothel owners appear on TV and are treated like business men instead of criminals. The red-light district is described as a place ‘not so bad’. And so – like many other women I could not see that I was about to enter into a criminal milieu and a violent one.

Had society told me: ‘Prostitution is dangerous, violent and a violation of human dignity,’ these traffickers would have had it much harder to entice me to enter prostitution. I would have been warned.”

This article is an edited version of a series of brilliant posts on Elly Arrow’s blog.