Butter bei die Fische III (engl.)

Sex Work and the Law in Germany: types of regulation and some recommendations – to the best of my knowledge and belief
(German Law Reform and public debate upcoming IV)

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Federal Law on Prostitution since 2002 http://www.bmfsfj.de/doku/Publikationen/prostitutionsgesetz/pdf/09.pdf
made by former government of the Social Democratic Party (SPD) and the Green Party (Die Grünen)
tiny law with only 3. Articles
idea: to fill the lack of rights of sex workers

objectives:
Article 1:
repeals the stipulation that sex work is unconscionable
distinguish enterprise from criminal operations
Article 2: changes of penal code regarding §180a, §181a StGB ‘pimping and exploitation’
Art. 3: Limited decisional authority of managers does not oppose to a beginning of work with the benefit of social insurance


improve social reputation of sex workers, removal of stigma
„remove all impediments of sex worker employment (…) to allow them to be subject to and benefit from social insurance contributions“
see R. Pates, 2012 http://resources.metapress.com/pdf-preview.axd?code=lx2gm55uq32p1622&size=largest
regulates labor rights of sex workers: the contractual relationship of selling sex between sex workers and clients, earning suable
federal law offers self-employed sex work and legal opportunity to introduce work contracts with social insurance between sex workers and managers

Realities & Recommendations

States=Länder (16 federal states) failed to implement and adjust the guidelines properly on the regional and local levels resp. states (Länder) ignore the Federal law, undermined by local/regional regulations; local sex workers and allies expertise is needed to consult and support its implementation, considering local and regional characteristics of the trade

cancellation of Article 2:
Penal Code is sufficient to prosecute these crimes, must not state in this Federal law on prostitution, promotes stigma: ‘prostitution’ is related to crime and no recognition of sex work as work.
Sex work is work and genuinely no crime and the Federal law on prostitution must not link crime with work.

Reality shows that almost no or just very few sex workers (no exact numbers) took advantage of this opportunity to sign work contracts as an option, maybe the legislator was not well aware of the strong ‘nature’ of sex work as genuine self employed and self determined work. The legislator compared sex work as work („perfunctory“ analogy to other work, Pates, 2012) but with an understanding of work as “wage labour” (fordism).
Managers as employers with limited decisional authority have one foot in prison while still offer good labor conditions i.e. for people under 21 yrs, provision of drivers and other services to improve working conditions. Reality shows that provision of better working conditions often seen by authorities as commercial promotion of sex work, followed by a strict interpretation of § 232 (trafficking) StGb (=Penal Law) of law enforcement. As a consequence you can see that sex workers under 21yrs work have only the option to work self-employed and alone in streets or flats; if they are looking for safer work conditions and are not allowed to work from a brothel there is still a demand for protection for many and makes it easier for pimps and/or other dependencies.

Ten years later sex work is still regarded as an immoral offense as you can read in (controversial) literature and jurisdiction.

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Criminal Law

Penal Code – StGB §180a and 181a (pimping) and trafficking §232, §233 for purpose of sexual exploitation (in addition to labour exploitation – StGB §232 – considers trafficking to bring persons under the age of 21 into prostitution (without force or violence)
Legal age to work in prostitution as self-employed is 18 years.

StGB §184e 184f prohibits prostitution at special times or places near schools or other places frequented by minors and criminalise the practice of sex work (as ‚voluntery prostitution‘)
EGStGB §297 authorise the Länder (16 federal states) to install “prostitution free zones” (Sperrgebiete) to protect the youth and the “public decency” (öffentlicher Anstand): E.g. ‚Kontaktverbotsverordnungen‘ prohibit communicating and soliciting for the purposes of prostitution in public (sex workers and clients will be fined) in Stuttgart, Mannheim, Karlsruhe, Düsseldorf, Köln, Bonn, Frankfurt/Main, Leipzig, Hamburg.
This law also legimise to introduce municipal and provincial laws to prohibit prostitution in towns with smaller populations than 30.000-50.000. Varies among municipalities.

Realities & Recommendations

Sex Workers under 21 are usually not allowed to work in brothels, agencies (managers would have to prove that the person has worked in sex work before starting work from a brothel or an agency and its hardly to prove); consequently they are enforced to work alone and independently without professional support or advice from elder collegues. Calling sex workers under 21 as “victims of trafficking” violate their protection from discrimination and sexual self-determination. It also stands in opposition to the principle of equality (Gleichbehandlungsgrundsatz Antidiskriminierungsgesetz AGG), the prohibition of discrimination (Art. 3 GG) and free choice of employment (Art. 12 GG) in the Basic Law (GG=Grundgesetz, provisional constitution)



These paragraphs insinuade a natural link between sex work and crime (trafficking) and discriminate sex workers. These laws are always to legitimise raids and brothels are constantly are under suspicion.


To force someone into prostitution or any other economies should be considered slavery and not trafficking. Because the term ‘trafficking’ become an interest-led public definition to discriminate all sex workers and migrants, mobile workers, who work in the trade and within a transnational economy that requires to cross borders to make an income and a living away from home. Mobile workers are genuinly “not trafficked” and “prostituted” (another term appeared on this horizon) if they work legally or illegally to make a living. Work always implies self-determination and agency among options and needs.

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Administrative Law:

Federal Building Code (Baugesetz/Baurecht)
local planning & building legislation regulates respectively prohibits prostitution in residential areas and mix used areas for business and housing, defines “prostitution-free” zones (Sperrgebiete). Except Berlin and Rostock … most of all German cities have zoning areas or currently define new areas (at least Dortmund, now Augsburg).
source: https://docs.google.com/spreadsheet/ccc?key=0AhBymvNPNdmXdFlEbk95X1hmMF9ZS0UxMzluaGxBa2c#gid=3


Trade law comes not with prostitution but handled like trade by tax authorities who decide on the local level if a service provider needs to apply for a trade license or tax number registration is sufficient to work legally. It varies from city to city, also within the same federal state.


Law on regulatory offences (Ordnungswidrigkeitengesetz) OWiG §119, §120 prohibits prostitution at special places and times, advertisement for selling sex
Different judgements in jurisdiction regarding advertisement for sexual services: at least in 2006 ads judged lawfully.

Realities & Recommendations

All zoning restrictions must be abolished. Sex Work should be regulated as other businesses and entrepreneurship. 

Local planning laws use the term “milieu” linked to brothels (cultural understanding of “Milieu” is defined by crime, pimping, low life setting), identifies all managers with criminals and pimps.
It should not be automatically assumed that brothels come together with “milieu”, as stated in building law (Baurecht). Brothels should be considered as other businesses.


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Public Health Law

German “Infection Protection Act” (“Infektionsschutzgesetz”) from 2000 (administrative law) abolished mandatory testing and promotes education and to take use from free and anonymous health checks, accessible and available at local health authorities, mostly in cities.


The Southern federal state Bavaria maintains a regulation to prohibit condom free sexual services (“Bayerische Hygieneverordnung”, §6), controlled by under-cover policemen and agent provocateurs who check out advertisments for services without condom. They also check and control service providers by pretending to be clients who ask for services without condom. Fines to be paid if they confirm.



According to the Infection Protection Act the Bavarian order refers to the legal situation before 2000 (before the amendment of “Bundesseuchengesetz”)
The Bavarian State Ministry for environment, health and consumer protection represents a different legal opinion than the supreme legislator and ignores Federal law.

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Labour and Employment law

No regulation of prostitution by labour and employment laws. The Prostitution law declares “limited authority” of managers to give directions” (“eingeschränktes Weisungsrecht”).



The prostitution law is currently revised by Federal Ministry of Family, Senior Citizens, Women and Youth (BMFSFJ).

Recommendation:
Ministry signals heteronormativity, gender identities not taken into consideration; obviously no awareness of the diversity of people working in the trade.
Prostitution should be renamed as Sex Work and regulated under labour and trade laws.


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Immigration Law

‘Illegal’ immigrants, asylum seekers and tourists are not allowed to work within the European Union. European law guarantees free movement for European citizens on the continent, with restrictions for people from Romania and Bulgaria who are not allowed to work apart from being self-employed until 31.12.2013. The European expansion is followed by an integration process in time and to protect and exclude EU-citizens from national job markets; at least Romania and Bulgaria become member states in 2007; from 2014 also Bulgarians and Romanians are able to sign work contracts as employees within all EU-member states.
There is an opportunity to apply for work visa for Non-EU citizens and employers must prove their efforts to find staff on the local and national job markets before employ citizens from non-EU-member states. This regulation is not applied in the sex industry, because ‘prostitution’ is not handled like other businesses.

Discriminatory clause in Immigration Law (“Aufenthaltsgesetz”, AufenthG, §55, Abs. 2, Satz 3): foreigners may be evicted and deported if they violate any legal rule concerning prostitution, e.g. working in prohibition zones (“Gewerbsunzucht”, i.e. “commercial fornication” instead of sex work). Migrants without tax numbers and working from prohibition zones may be evicted and deported to their countries of origin, also EU-members. 

Victims of ‘trafficking’ are evicted except they give evidence against their ‘traffickers’.



Realities & Recommendations:

The European Union exists of 27 member states but citizens are not treated equally.
People migrate to different countries in Europe and around the world to earn a living, must not been restricted.
The European Union is not able to impose sanctions against member states who allow and support human rights violations i.e. against its cultural minorities like Roma people who are discriminated and face violence in their home countries, areas of settlement all-over Europe.

Work visa for Non-EU-citizens to work in the trade must be more accessible.
Legal rights withheld on the local level, particularly of migrants. Access to health services not guaranteed. Support from social workers together with lawyers necessary to claim their legal rights. Success depends from strenghts and personal engagement of social workers, groups who dominantly advocate sex workers human rights.
The tax registration process must be also more accessible. Processing of tax declarations for sex workers with migrant backgrounds take sometimes 2-3 years and is a discriminatory practice.

All discriminatory clauses must be cancelled.

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Tax Law

Sex workers underlie all laws of taxation and need to register with a tax identification number.
To make it easier to collect taxes municipal authorities introduce the option of paying a daily flat tax beyond real income. The daily flat tax differs from work setting, collected by managers of brothels against receipts to declare. Officially introduced as an easier “option” to join tax procedure (“Düsseldorfer Verfahren”) it irritates so many sex workers who think paying daily taxes they can work legal and anonymous (without registration and tax declaration). That means if they cannot prove their payments with receipts because they didnt get informed properly and miss to register and declare they are suspicious with tax evasion and retrospective refunds.
Many cities charge differently between 20-30€ for a daily flat tax/working day, while street based sex workers in the City of Bonn must pay 6€ at the beginning of their night shift (working hours are defined in permission zones). Bonn installed an automatic dispenser to pay the nightly tax with receipt.

other special taxes: beside Income Tax, Sales Tax and Business Tax some cities ask for “entertainment taxes” for special venues sex workers work from (“Vergnügungssteuer”, „Sex Steuer“ paid by sex workers (e.g. 6€) on a daily basis or brothel managers where guests and sex workers pay entrance fees (3€ per square metre) e.g. Cologne.

recommendation:
All special taxes referred to sex work must be abolished. There is no need to treat the sex trade in tax law different from any other businesses.

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Provincial/State Laws

Different “police laws” (Polizeigesetze) of federal states (Länder) allow raids in brothels and flats
police and regulatory law sovereignty of the Länder http://www.freiersein.de/information/polizei-ordnungsrecht.php

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Local/Municipal Laws

as described above EGStGB, Art. 297; StGB §184e, the implementation of zoning areas is created by municipal orders

recommendations:
All prohibition zones must be abolished as well as special taxes and any other special regulations; a variety of safe & secure work settings from whom sex workers can chose freely must be assured.
To make street work safer cities should provide communal houses and safer work environments within urban infrastructures connected to social & health services and effective outreach (incl. virtual outreach).

upcoming: IV Prostitution and Law Reform, incl. public debate around trafficking



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