RSS Feed

Monthly Archives: June 2013

Does legal prostitution really increase human trafficking in Germany?

Posted on
Does legal prostitution really increase human trafficking in Germany?

Guest post by Matthias Lehmann and Sonja Dolinsek

[In the Irish campaign to criminalise sex workers’ clients, supporters of this proposal have regularly pointed to the German experience as “proof” of the failure of legalisation – despite the fact that Germany’s model is not actually advocated by anyone in the Irish debate. A recent article in the German newspaper Der Spiegel appeared to provide support for the view that legalisation has failed, and this has been picked up on and quoted by campaigners for criminalisation in Ireland. In this post, translated by the authors from the original German, two Berlin-based researchers explain what Der Spiegel got wrong.]

Last week, leading German news magazine DER SPIEGEL published a cover story – now published in English – on the alleged failure of the German prostitution law (ProstG) which rendered the State complicit in human trafficking. The deeply flawed report fails, however, to address numerous relevant aspects of human trafficking prevention and prosecution, including victim protection. It also fails to insert much needed factual evidence into the broader global debate on human trafficking, which is also about labor rights, migration, sustainable supply chains and human rights. DER SPIEGEL thus contributes to a very narrow debate on human trafficking and to the wrong debate around sex work.

Our blog post is based on a longer critique published in German on the blog “menschenhandel heute”. In this shorter version, we would like to critically engage with the international community on the difficult relationship between trafficking and sex work.

The myth of legalization

Prostitution, understood as the selling of sexual services, has been legal in Germany since 1927. In addition, Germany’s sex workers have been obliged to pay taxes since 1964. The new prostitution law of 2002 changed some aspects pertaining to the legal relationship between sex workers and clients and some criminal law provisions. It recognized the contract between sex workers and clients as legal and introduced the rights of sex workers to sue clients unwilling to pay for sexual services already provided. In addition, sex workers received the right to health insurance and social security. The law also forbids the right of direction (Weisungsrecht) by the employer in cases where a sex worker is employed at a brothel, for instance. In this way, a sex worker would always be able to determine to which sexual practices she or he would agree or not. What is misleadingly called the ”legalization“ of prostitution is actually the recognition of sex work as labor.

However, the law has encountered opposition in the implementation process. Rather than the law itself, as DER SPIEGEL claims, it is the unwillingness of some German states to correctly implement the law. Germany’s federal structure requires every state to issue its own implementation directives, which, as political science professor Rebecca Pates explains, did not happen in states like Bavaria or Saxony. Pates argues that some states actually never implemented the new law due to moral reservations with regard to prostitution. “The ProstG might in fact have the distinction of being the only federal law intentionally not implemented by Germany’s public administration”, she states in her paper “Liberal Laws juxtaposed with rigid control: an analysis of the logics of governing sex work in Germany” (2012). Other researchers presented similar findings. Her claims are supported by an official government report of 2007 (a shorter English version can be found here), which identifies the political unwillingness to implement the law as a reason for its failure. DER SPIEGEL’s analysis ignores this fact.

Technically speaking, prostitution is not legal everywhere in Germany. Most states prohibit prostitution in areas close to schools, churches, hospitals or residential areas, and most cities have defined restricted areas (Sperrbezirke) and times, where and when prostitution is not allowed. Some cities declare the whole city a restricted area, mostly with the exception of dark and dangerous outskirts, or allow prostitution only during the night. Furthermore, most states prohibit prostitution in cities with less than 30,000 inhabitants. This makes prostitution de facto illegal in most places and at most times, and sex workers receive fines or jail sentences if they violate the restrictions. In addition, sex work is not allowed for non-EU nationals (third country nationals), who would breach their residency requirements, if they engaged in prostitution. Non-EU nationals engaging in sex work are thus criminalized and made vulnerable not by the law, but because they are excluded from the law. Therefore, the incomplete legalization of prostitution may be the actual reason why the German prostitution law is failing its purpose to protect sex workers on the one hand, and why, on the other hand, most victims of human trafficking are from third countries.

“Pimping” in Germany and the war with numbers

New criminal law provisions were introduced with the reform. As DER SPIEGEL correctly points out, the criminal offence “promotion of prostitution” was replaced with “exploitation of prostitutes”. In his response to the Spiegel’s cover story, Thomas Stadler, attorney at law, explains:

‘The claim that procuration would only then be a criminal offence if it was “exploitative” or “organized in a dirigiste manner”, which is hardly verifiable, is tendentious, at the very least. According to prevailing legal norms, those activities are deemed as procuration (“pimping”) where someone exploits a person that works as a prostitute, controls this person’s work to gain pecuniary advantages, dictates the place, time, degree or other circumstances of this work or takes measures to prevent this person from exiting prostitution that go beyond an isolated incidence. Insofar, there might be individual cases, just as in other criminal proceedings, where evidence is hard to come by. One has to ask, however, what procuration actually is and how the legislator is supposed to define it. According to previous legal norms, cases could be built on the establishment of a pleasant atmosphere, which rendered virtually anyone a “pimp” that had some sort of function in a prostitute’s orbit. The decrease in convictions might therefore result from the removal of juridical measures that were questionable in the first place. And that surely wouldn’t be a step backwards.’

In addition, the new criminal offence of “human trafficking for sexual exploitation“ was introduced. As Stadler points out:

Human trafficking is certainly a criminal offence. In §232 StGB, the criminal code even contains its own article that deals with human trafficking for the purpose of sexual exploitation. The level of the penalty ranges between six months and 10 years. Introduced in 2005, this article is a considerable increase from the previous regulation, §180b StGB, both with regards to content and the penalty range. Since this article includes the so-called “forced prostitution”, the actual topic of the SPIEGEL article, the message of DER SPIEGEL’s cover is entirely incorrect. A sincere report should rather have pointed out that the legislator introduced considerably tougher laws to penalize “forced prostitution” in 2005. Therefore, to claim that the State promotes trafficking in women and prostitution is absurd. The opposite is true. The legislator increased penalties for “forced prostitution” and human trafficking.

Thus, with a strengthening of labor rights for sex workers came a stronger criminal law, making the exploitation of sex workers as well as human trafficking for sexual exploitation criminal offences.

DER SPIEGEL suggests that the case of 16-year old Sina, forced to work in a flat-rate brothel, is a typical example illustrating the failure of the German prostitution law, since the law would not protect her. However, employing a person less than 18 years of age at a brothel is a criminal offence under German law. Thus, Sina’s situation is not one that the prostitution law aims to address, and therefore, the law does not fail her in this regard. The failure of the legal system towards her situation and towards other victims of exploitation must lie somewhere else.

Contrary to DER SPIEGEL, the number of convictions for “pimping” did neither decrease nor increase in statistically significant ways with the new law. DER SPIEGEL claims 32 identified “pimps” were convicted in 2011, as opposed to 151 in 2000. An official government reply to a parliamentary enquiry from 1997, however, shows that low convictions for “pimping” were actually a trend: in 1994, there were only 39 convictions for “pimping”. Numbers from the federal statistics bureau suggest similar developments.

According to official statistics, the number of officially identified victims of human trafficking decreased significantly in the past fifteen to twenty years. The same government reply from 1997 mentioned 1,196 victims of human trafficking in 1995 and 1,473 victims in 1996, while the statistics of the past four years on record show steady figures of an annual 610 to 710 victims of human trafficking for sexual exploitation, i.e. 640 victims in 2011.

Human trafficking for labor exploitation is also a criminal offence, which so far has failed, however, to attract much interest by the German public. Recent research has shown that, until recently, even counseling centers for victims of human trafficking were mostly unaware of the possibility of labor trafficking and unprepared to provide adequate support. The general lack of interest towards labor trafficking is reflected in the low number of identified victims: only 32 individuals in 2011.

So, where is the real problem?

DER SPIEGEL’s greatest omissions are victim protection and victims’ rights when it comes to human trafficking. A narrow focus on the prostitution law and sex work prevents the authors from dwelling into the more complex web of legal regulations that make the prosecution of cases of human trafficking difficult in Germany.

First, human trafficking cases are dependent upon the testimony of victims. If they are for some reason unwilling to cooperate with the police and do not wish to testify, their cases will most likely fall apart. Furthermore, psychological support for victims of human trafficking is very limited. In many cases police officers and investigators expect linear and consistent narratives from victims from the very beginning, and utterly fail taking into account any traumas they may have endured just moments before. Victims are therefore not only forced to narrate their experiences over and over again, while their traumas are well and alive, but will also have their credibility judged and refuted as potential witnesses, if for some reason their stories show inconsistencies.

Before we talk about the prostitution law, let’s talk about how (potential) victims of human trafficking are treated once encountered by the police, and let’s talk about how those practices may in fact reduce to a minimum the willingness to testify.

Second, most victims of human trafficking who are third country nationals or from Romania or Bulgaria are repatriated to their home countries after their testimony. If they do not testify or cooperate with the authorities at all, they will be deported immediately after a reflection period of three months. Many decry the unwillingness of victims to testify as one central reason for the failure of trafficking prosecution. So far, however, little has been done to encourage testimony and cooperation by strengthening victims’ rights. What DER SPIEGEL fails to understand is that a reform of the prostitution law would have no impact on this aspect whatsoever. By focusing on the victims, the authors risk tapping into a dangerous rhetoric of victim blaming, and thus miss how not the prostitution law but the German immigration law actually contributes to much of the vulnerability of migrant women who are victimized. Germany should rather look towards Italy, where victims of human trafficking are unconditionally granted a residency permit and can begin re-building their lives.

Last but not least, Germany and the German media have so far missed the opportunity to broaden the public debate on human trafficking and modern slavery to include labor trafficking, organ trafficking as well as labor exploitation in supply chains of large corporations. Instead, the term human trafficking is often equated with prostitution by the media, politicians and even activists, thus perpetuating a selection bias towards women in the sex industry. Victims of other genders or in other sectors run not only a very high risk of never being detected but also of not even being believed. In this sense, we believe DER SPIEGEL has failed its declared commitment towards human trafficking victims – as the majority are conveniently left out, while others, like self-determined (migrant) sex workers, simply are not victims of trafficking.

The story and representation of Carmen, a sex worker from Berlin

The German print version of DER SPIEGEL’s cover story also featured an inset profile about Carmen, a sex worker from Berlin. Carmen works as an escort as well as a sex workers’ rights activist, a role she also fulfills as member of the German Pirate Party. She reacted to the profile by publishing a counterstatement, in which she quoted the email exchange with DER SPIEGEL’s journalist prior to the interview and publication. Contrary to the agreed terms, Carmen writes, the profile dealt only marginally with her “thoughts about prostitution policies, the sex workers’ rights movement, the discrimination of sex workers” or other relevant subjects. Whereas Carmen had agreed to the interview to introduce “arguments instead of prejudices into the public debate about prostitution and allow insights into an occupation that most people have no access to”, 80 per cent of the eventual profile contained stereotypical descriptions of Carmen’s appearance and her escort website

“I am not prepared to be made a projection screen of any clichés. I will not answer any personal questions that concern aspects outside my work in prostitution/politics”, Carmen had written prior to the interview.

In addition, DER SPIEGEL had altered the photo that Carmen had provided to be featured. While blackening her face without her consent anonymized her, the color corrections effectively highlighted her décolleté, further adding to the overall tone of the article.

After Carmen’s statement had gone viral, the journalist published his own counterstatement on DER SPIEGEL’s blog, only to draw more criticism. Under the headline “An Escort Lady makes Politics: Be truthful”, he admitted the non-consensual alteration of the image but claimed it was done to protect Carmen’s privacy, even though she had not explicitly asked for any such changes. Where the article’s focus and tone were concerned, he invoked the freedom of the press.

Interestingly, DER SPIEGEL also tried to do damage control by sending customized tweets to those who had twittered Carmen’s statement, and for its international online publication, DER SPIEGEL then chose to omit Carmen’s profile entirely, thus removing the one voice, if poorly presented, opposing the cover story’s narrative that legalizing prostitution in Germany had failed.

DER SPIEGEL also published a photo series to support the article’s narrative, which included voyeuristic images, a photo of Christine Bergmann, Federal Minister of Family Affairs when the German prostitution law was passed (of whom no other picture seemed available as that in front of a sign about child abuse), an angelic picture of Swedish anti-prostitution activist Kajsa Ekis Ekman, and to counter that, an unflattering photo of Volker Beck, human rights spokesperson of the German Greens and a staunch supporter of sex workers’ rights.

About the authors:

Sonja Dolinsek is a graduate student in Contemporary History and Philosophy at Humboldt-Universität zu Berlin. Her research project focuses on the history of prostitution in the German Federal Republic since 1949, with a particular interest in the gendered construction of sex workers. She is also the founder and editor of the German news blog on human trafficking “menschenhandel heute”, where she critically engages with anti-trafficking discourses and practices. She also volunteers as a translator for PICUM (Platform for International Cooperation on Migrants). She lives in Berlin, Germany.

Matthias Lehmann is an independent German researcher currently based in Berlin after extensive stays in East Asia. A graduate of the School of Oriental and African Studies (SOAS) and Kyung Hee University, he has conducted research and fieldwork in Thailand and South Korea. In 2012, he participated in the Sex Workers’ Freedom Festival in Kolkata, official hub of the 2012 International AIDS Conference. His research focus lies on the collateral damage caused by anti-trafficking and anti-prostitution legislation, in particular where the rights of sex workers and migrants are concerned. With his on-going research project, he aims to add to the knowledge about the experiences of sex workers in South Korea.

On law and “Lose the Lads’ Mags”

Posted on

So last week UK Feminista and Object issued a joint press statement, announcing they’d received legal advice that women working in shops that sell “lads’ mags” may be able to sue their employers for sexual harassment or sex discrimination. A number of bloggers have already given incisive critical responses, and I’ll particularly point you in the direction of Stavvers from Another Angry Woman, Gemma Ahearne from plasticdollheads and Jem and Carter from It’s Just A Hobby.

I’m coming to it a bit late myself, but that’s because I was hoping to be able to base my response on the legal advice the two groups received. I should have been able to base it on that legal advice – or at least a summary of it – according to this snippet from the press statement:


So, last Monday evening I sent them this email:


By Friday morning, I hadn’t heard anything so I followed up with this tweet:

to which I unfortunately have had no reply, though they’ve been active on Twitter since then and have responded to other people’s tweets. So either they aren’t really making the summary available, or they’re being very selective about who they make it available to – which raises its own questions.  The press release (and the corresponding Guardian letter, signed by a number of British lawyers) are fairly clear about what they believe to be the legal basis for action – the Equality Act 2010 – and how they think the shops may fall afoul of it by selling lads’ mags, so I have to wonder what exactly is in the summary that UK Feminista are holding back.

The Guardian letter makes reference to “examples of staff successfully suing employers in respect of exposure to pornographic material at work”, so perhaps the advice contains actual details of those examples, and maybe unsuccessful attempts as well – which would be useful in assessing what criteria are needed to make out an actual case of sexual harassment or sex discrimination. You’ll notice that the letter is carefully couched in equivocal terms – sale and display of the magazines “may” breach the Equality Act; “is capable of giving rise to breaches”; “in some cases”. I’m not sure those caveats come across as clearly in the press release, in which Kat Banyard announces:

The good news is that customers and employees don’t have to put up with it any more. Legally as well as ethically, lads’ mags are well past their sell by date.

As Carter and Stavvers pointed out, the effect of such an unqualified assertion could very well be to mislead some shop workers into thinking they have a case when they don’t – and that could have disastrous consequences for their job security if they were to act without benefit of proper legal advice. As an occasional campaigning-group-press-release-writer myself, I understand that bold statements make better copy, but I wish they’d given some consideration to the fact that there are actual jobs at stake here which most of these workers can probably ill afford to jeopardise. A certain amount of responsibility has to go along with imparting legal advice, whether it’s your own or somebody else’s. And I don’t think that’s a very responsible statement for Kat Banyard to make.

As to the legal advice from the lawyers – or at least, what I’m able to see of it – all I as a non-British-lawyer can do is look at the statute and the case law. The Equality Act 2010 prohibits direct and indirect discrimination, the latter applying where

A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s

… “sex” being one such protected characteristic.

There’s another section about Sex Equality (Section 64) but it deals with pretty much what it says it deals with, i.e., equal terms and conditions of work. Which would certainly be breached if female employees were singled out for sexual harassment, and may be the reason the letter and press statement refer to discrimination and not just harassment alone. On the other hand, they may be applying the Catharine MacKinnon notion of pornography itself as a discriminatory act – what she described in Only Words as “subordinating women through sex”. The problem with this is that it rests on a series of assumptions which would all need to be accepted for this approach to succeed: that lads’ mags are pornography; that pornography does subordinate women; that the impact of this is sufficient to overcome the rights of the publishers to produce, the stores to sell and the buyers to purchase these materials. It’s not a terribly solid foundation to build a case on, which I imagine is why the letter mostly just highlights the harassment angle.

So let’s turn to that. Under Section 26 of the 2010 Act, harassment occurs where:

(1)(a)    A engages in unwanted conduct related to a relevant protected characteristic, and
(b)  the conduct has the purpose or effect of
(i)violating B’s dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2)A also harasses B if—
(a)A engages in unwanted conduct of a sexual nature, and
(b)the conduct has the purpose or effect referred to in subsection (1)(b)

I don’t think you have to agree with UK Feminista and Object to understand, in theory, where they see the lads’ mags fitting in here. But it’s important to read the section in full, because it goes on to say:

(4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a)the perception of B;
(b)the other circumstances of the case;
(c)whether it is reasonable for the conduct to have that effect.

What this basically tells us is that displaying and/or selling the lads’ mags cannot constitute harassment in and of itself – even if a shop assistant feels her dignity has been violated, even if, and I think it is rather a big if, the sale of the magazines is what has given rise to the hostile or offensive environment she experiences. All the circumstances have to be looked at in the round, and each case will be judged on its own merits.

Which is why I really wish I had precise details of the cases the legal advice is based on. Most of the case law I’ve found predates the Act, though I don’t see any pertinent change from the previous law. There certainly are examples of successful actions against employers for exposure to porn in the workplace, but not in a context where the porn was a product being sold by the employer. So I’m not sure how much use those cases would be in the type of case we’re discussing here. For one thing, there is more scope for a conflict of rights here, since compelling an end to these sales would impinge on the publishers’ freedom of expression (as well as free movement of goods and services, if there’s any cross-border element involved). Given the huge deference that the ECHR and the EU give to member states to regulate sexually explicit material, I don’t think this would necessarily be the biggest legal hurdle, but it would be an additional one that wasn’t present in the earlier cases.

There’s also a strong possibility that the Employment Tribunals would distinguish between the circulation of images that are in no way related to a person’s actual work, and the sale of magazines by a shop whose business it is to sell magazines. I realise this has the whiff of “what did you expect when you took that job” and that can be problematic for a lot of reasons, not least that the people who work in these shops often don’t have a lot of alternatives. It is, nonetheless, a point on which the tribunals could distinguish this case from the precedents, and I think they’d be likely to seize on it. Unless women on staff are somehow being targetted for abuse with these magazines – in which case the issue really is the abuse and not the magazines themselves – I would expect the Tribunal to fall back on the “other circumstances of the case” provision. If it didn’t – if it held that a worker was sexually harassed by the mere sale and/or display of these magazines – then it would cease to be just an employment tribunal, and overnight would become a national press censor. This is just the type of scenario in which judicial bodies tend to put their hands up and say it’s up to Parliament, not them, to make that call.

I don’t entirely accept the slippery slope argument made by some other critics of the campaign. And again, this is because of the judiciary’s ability to distinguish between what might seem like analogous cases before it. It’s entirely possible, and indeed it happens all the time, that a court or tribunal will refuse to apply its own previous reasoning – not because it doesn’t follow logically, but because it would have undesirable consequences. If an Employment Tribunal did rule that a woman was discriminated against by having to sell Nuts, it doesn’t mean they’d then have to find a religious fundamentalist was discriminated against by having to sell Gay Times. Where the slippery slope might apply, though, is in the decisions made by individual shop owners or chains: if a UK Feminista/Object victory had the effect of emboldening other groups, as it surely would, pulling anything that causes controversy may well be the more desirable option from a commercial/convenience standpoint.

“Lose the lads mags” campaigners can’t pretend this is unlikely, either, because this sort of self-censorship is exactly what they’re aiming for. I’m not sure if they believe they could actually win a case, but they might have an impact just by threatening to bring one. How much of an impact remains to be seen (though I’m inclined to predict “not much”). One thing’s for sure anyway: just as a successful No More Page 3 campaign would still leave us with a vile rag called “The Sun”, losing the lads mags would still leave the women who work in these shops with a myriad of other problems – and dare I say it, more pressing problems, or at least they were more pressing when I worked in a shop – such as low wages, long hours, little or no job security and, yes, sexual harassment, the kind you can’t get rid of just by pulling a magazine from the shelves. I’d like to think that if they win this campaign, UK Feminista and Object will stick around to help these women fight to overcome those problems too. But I suspect they’ll just move on to the next sexy press release.