Legalizing Prostitution: From Illicit Vice to Lawful Business (22 page)

• To remove the aura of immorality from prostitution

• To improve the legal status of prostitutes

• To improve working conditions

• To reduce crimes that accompany prostitution

• To facilitate exit from prostitution
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The statute decriminalized prostitution and granted adult sex workers rights to enter into contracts, to apply for social insurance, and to sue clients for nonpayment. Procuring, managing, and promoting prostitution are no longer crimes, provided that these actors do not curtail a worker’s “personal or financial independence,” in the words of the penal code. In addition, German penal law (§232[1]) contains a trafficking offense, defined as a situation in which someone “exploits another person’s predicament or helplessness arising from being in a foreign country” and thereby induces the person into prostitution. This provision also criminalizes third-party enticement into prostitution of anyone (including German citizens) under the age of 21. The
law provides a penalty (a sentence of six months to ten years) for anyone who “induces a person under 21 years of age to engage in or continue to engage in prostitution.” Coercion is irrelevant; individuals are defined as victims of exploitation simply by virtue of their age.
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German citizens aged 18–21 who are not induced, as well as those who are 21 and older and induced, are free to engage in prostitution.

The 2002 law gives sex workers certain contractual rights and prohibits managers from forcing a worker to accept a particular client or to engage in disliked sexual practices, but unlike some other legal systems, the law does not regulate other working conditions. Brothel owners are not required to provide specified amenities to ensure that their workplace is safe and hygienic. A 2006 proposal mandating health examinations for workers was rejected by the government in favor of promoting outreach work instead.
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In general, the law has had little impact on working conditions, and third parties have no legal or economic incentive to improve them. A government report stated that there had been “hardly any measurable, positive impact” on working conditions as a result of the 2002 law and added that “it is not surprising that working conditions are not improved unless they also fulfill the economic interests of the operator.”
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The period since legalization can also be faulted for some of the restrictions placed on sex workers as well as the absence of collateral normalization. Workers are not allowed to advertise (except on the Internet); prostitution is not accepted as a trade by Germany’s trade association; and repressive police practices in some places violate the spirit of the 2002 law.

A survey conducted in 2004 of 305 prostitutes and 22 brothel owners asked whether they thought the 2002 law was “a good thing”: 62 percent of prostitutes and 77 percent of brothel owners felt that it was beneficial. However, only 12 percent of prostitutes and 32 percent of owners thought that the law had brought about any improvements (understandable, given the recency of the law), while 46 percent of each group said that they hoped it would lead to further improvements. Two-fifths (43 percent) of the prostitutes felt that the statute had empowered them to assert their rights. Yet, since 2002, sex workers have initiated very few court cases against owners. Similarly rare are charges against clients who refuse to pay for services—largely because the standard practice is to demand payment in advance and because the court costs typically would exceed the amount of lost income that might be recovered, coupled with workers’ desire to remain anonymous.
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Suing a client or brothel owner would involve a public announcement of one’s occupation and would expose nontaxpaying workers to tax liability. (When some sex workers
have tried to register with the tax office, they have been charged back taxes for years of unreported income.
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The amount of unpaid tax appears to be substantial,
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and taxation enforcement differs from city to city. In some places, the local revenue office has a unit that investigates illegal brothels or other erotic establishments in search of tax evasion. The unit conducts raids on suspected premises along with the police.)

In addition, the right to enter into employment contracts with third parties is almost never asserted. Only 1 percent of the 305 workers interviewed in 2004 had an employment contract, which are disliked by workers and brothel operators alike. Prostitutes fear that employment contracts will jeopardize their anonymity, as well as their autonomy if the contract contains undesirable obligations. Owners dislike contracts because they would then have to pay insurance premiums for their employees, who also would be entitled to holiday pay, pregnancy leave, and social security benefits.
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The government has shown little interest in convincing workers to enter into formal contracts, unlike in the Netherlands. As a government report stated,

The majority of prostitutes wish to retain their independence (and self-determination) and this should be taken seriously. … In the Federal Government’s opinion, further deliberation on the issues involved should include looking at how … freelance work could guarantee prostitutes social protection and how their working conditions as freelancers could be improved.
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Regarding prostitution-related crimes, government statistics show a marked improvement since 2002. Recall that procuring/pimping was a crime prior to 2002 but is no longer an offense, provided that a worker’s “personal or financial independence” is not curtailed; the latter type of pimping remains illegal under §181(a) of the penal code. Given that only a certain kind of procuring or pimping is now outlawed, we should expect a decrease in the number of procuring/pimping §181(a) cases after 2002, and official figures bear this out. In 2000, there were 1,104 such cases, steadily dropping to 298 in 2009. Similarly, §180(a) of the penal code was amended for employers who manage prostitutes: they are now liable for punishment only if they keep a prostitute personally and economically dependent on their business operation; the number of cases under §180(a) dropped dramatically between 2000 and 2009, from 1,365 to 62. Trafficking cases under §232 (exploiting someone’s “predicament or helplessness arising from being in a foreign country”) declined as well, from 1,016 in 2000 to 811 in 2009.
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Regarding organized crime’s role in the sex industry since 2002, the trend is less clear, given the
lack of direct measures of organized-crime involvement (except perhaps the trafficking figures), but a government report did note a trend among certain business owners: “‘Good’ brothel operators dissociate themselves from the ‘black sheep’ in order to show how respectable their establishments are and thus to increase turnover [business].”
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Apart from the positive trend regarding prostitution-related crimes, the German government’s overall assessment (five years after the passage of the 2002 law) was that the law had “only to a limited degree” achieved its goals.
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This is understandable given the law’s rather minimalist regulatory approach. Removing the aura of immorality from prostitution, one of the law’s goals, is not advanced when so little has been done to harmonize this goal with other laws and official practices. Regarding the statute’s other expressed goals, the government report called for “a more broad-based approach to regulating prostitution”—including additional mechanisms to improve working conditions, prevent crime, and “more efficiently monitor commercial enterprises providing sexual services” by licensing them.
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Aside from the general objectives of the 2002 law listed earlier, prostitution policies are locally determined: there is no single “German model.” The law allows cities and towns with a population of less than 50,000 to ban prostitution and allows other jurisdictions to restrict it to certain places and prohibit it in others (called “negative zones”). Consequently, each jurisdiction has developed its own policies, and prostitution remains illegal in many parts of the country. In many German states, legal prostitution exists only in a small fraction of its cities and towns. Some municipalities ban all prostitution, whereas others (e.g., Berlin) impose very few restrictions. Most ban visible prostitution from the city center, relegate it to a zone elsewhere in the city (in some cases, to an industrial area), and stage police raids in areas where prostitution is forbidden, even when it is unobtrusive in apartments or hotels.
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Street prostitution is permitted in only a few places and accounts for about 10 percent of prostitution in Germany.
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Window prostitution exists in a few cities (including Hamburg, Bremen, Braunschweig, and Mannheim) where it is confined to a single street of 10–20 rooms and is hidden behind barricades with signs that forbid women and persons under age 18 from entering. Outside these few window streets, indoor workers in German red-light districts are shielded from view at the street level; the erotic nature of their workplace is visible in signage, but the prostitutes themselves are only visible after one enters the building.

Even in places where prostitution is permitted, it may be treated by officials as a deviant enterprise in need of suppression, despite the normalizing intent
of the 2002 law. Leipzig, for example, has only a few legal, registered brothels, and the authorities’ overall approach involves “repressive practices combined with a view of prostituting women as deviant.”
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This contrasts with cities where prostitution is treated as a quasi-conventional business whose interests are generally safeguarded by the authorities. Some cities take an “empowering approach that aims at social inclusion of sex workers” and views “sex workers and brothel owners as more or less ‘normal’ economic citizens.”
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For example, when the new law came into force in 2002, Dortmund officials held workshops with sex workers and brothel owners to explain the new rules. The authorities’ approach to illegal prostitution also varies. In some cities, including Frankfurt, large groups of police and tax officials stage aggressive raids on brothels and nightclubs suspected of tax evasion or of harboring illegal migrant workers, whereas in other cities the monitoring is more tempered.
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As one would expect in any setting where prostitution has been recently legalized, there are local and national forces in Germany inside and outside government that remain opposed and have tried to turn back the clock. The Christian Democratic Union Party has advocated implementing the Swedish system criminalizing customers. Others have demanded more robust undercover police operations to bust those who sell sex outside designated zones. And the issue of trafficking is increasingly tied to prostitution in media stories, prompting calls for total repeal of the 2002 law, despite the fact that trafficking cases have declined over the past decade, as documented earlier. A coalition of activists from the churches and women’s organizations has tried to convince the government to crack down in other ways: for example, to license workers and to mandate condom usage and medical exams. The police themselves have lobbied for the power to enter sexually oriented establishments at any time (without the need for a judge’s warrant and thus nullifying the reasonable-suspicion requirement). A February 2011 bill in parliament would, if passed, free the police to engage in such raids and would mandate the licensing of all prostitution businesses, the registration of all prostitutes, and compulsory condom usage (currently neither workers nor sex businesses need special licenses to operate, and condom usage is not mandatory except in the state of Bavaria). All of the political parties support this bill.

Let me sketch the contours of prostitution in Germany as a prelude to an exploration of Frankfurt’s sexual landscape. I have already noted that
street prostitution
is not prevalent and is discouraged by the authorities. It accounts
for about 10 percent of prostitution in Germany and 2.6 percent in Frankfurt.
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A few municipalities have created special zones for street workers on the outskirts of the city, in an effort to remove them from the city center. The zones are modeled on similar areas in some Dutch cities. In 2001, Cologne created the first such zone, which contains drive-in cubicles where prostitutes have sex in clients’ cars. The area is fenced, gated, and fitted with security cameras, and each cubicle has an alarm button for workers’ safety. About 300 prostitutes work in the zone, which has reduced street prostitution in the city center.
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Agency-based or independent
escorting
is just as common as it is in other Western countries and is only noteworthy in Germany because escorts (as legal actors) can advertise sex freely without the need for euphemisms (such as “full service”). A sexually oriented advertising company, RTO, assists sex workers with Internet ads, designs websites, and arranges photo shoots. A manager at RTO told me that it is the only agency “that tries to build business for the sex industry.” He added, “Some people say we are online pimps. But we are a cheap place to put an ad, so we are facilitating women working without pimps.”
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Home-based sex work
: In general, the authorities allow a maximum of three workers to work out of the same apartment or house, provided that at least one of them resides there and the place is registered in her or his name. It is forbidden for more than three people to sell sex in a residential unit, although the police tolerate this in some places.

Erotic bars
are abundant. They include strip clubs, live sex shows, and bars where hostesses sit with men, encourage them to buy drinks, and provide sexual entertainment. Women are available for erotic touching and, depending on the place, other sexual services.