A Façade of Liberation: The Technicalities of Legalization and the Socio-Legal Impact of the 2002 Prostitutionsgesetz on Female Sex-workers in Germany
Eleanor Baker Bangor University, Wales
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I. Introduction A historically illegal practice that had particularly harsh consequences for female sex- workers, prostitution has long been a taboo in Western society. For centuries, women who worked in the industry have been branded as unsanitary and immoral. In the last two decades, a number of nations have sought to liberalize the position of prostitutes within Western society; Germany was among these nations. The implementation of the 2002 Prostitutionsgesetz (ProstG) – or Prostitution Act – was a strategic move on the part of the German government. The intention behind the new Act was to help legitimize prostitution as a profession, hoping that legalization would aid in reducing the number of instances of rape and violence endured by sex-workers in Germany and remove the stigma that had been forced upon prostitutes following centuries of vilification. This paper will explore the social and legal standing of prostitutes in 19th century Germany, examining the demographics associated with the practice and the impact of illegality on the lives of women working in the sex trade. It will also offer an analysis of female sex-workers working in Germany following the implementation of the Prostitutionsgesetz – hereinafter referred to as ProstG – at the very beginning of the 21st century. Through this comprehensive evaluation of prostitutes’ socio-legal status in the 19th and 21st centuries, this paper aims to ascertain the extent to which female prostitutes working in Germany have been positively impacted by this act.
II. Legislative Background In terms of the legislative background, the technicalities of the term ‘legalization’ are key to understanding the effects of ProstG on prostitutes. For a government to legalize a practice is to impose a set of rules as a means of formal regulation; it does not necessarily mean that said practice is legal for every member of society to undertake. 1 Decriminalization, however, “takes away the status of criminal law from those acts to which it is applied.”2 In short, ProstG introduced a set of formal regulations for prostitutes. It did not mark the liberalization of prostitution for all; for example, illegal immigrants do not have the same liberties as citizens of jus soli or jus sanguinis (those born in Germany or of German heritage, respectively), and can face criminal penalties if they are found working as prostitutes.3 These technicalities behind the terminology used in ProstG immediately impact the law’s effectiveness in benefitting sex-workers, due to the particular demographics of the sex-trade, which will be discussed later in this article.
III. Historical Background The historical position of prostitutes has always been difficult. Throughout the 19th and up to the beginning of the 21st century, prostitution was illegal, and women sex-workers were penalized as a consequence of their involvement in a supposedly immoral line of work. Although an unlawful practice, the business of prostitution was already thriving in the late 19th century. By
1 European Monitoring Centre for Drugs and Drug Addiction, Decriminalisation in Europe? Recent Developments in Legal Approaches to Drug Use (Lisbon: EMCDDA, November 2001), p. 2 2 Ibid, p. 2 3 Rebecca Pates, ‘Liberal Laws Juxtaposed with Rigid Control: an Analysis of the Logics of Governing Sex Work in Germany’, Sexuality Research and Social Policy, 9 (2012), 212-222 (p. 212)
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1870, there were 16,000 registered female prostitutes in Berlin alone, a figure that had risen to 400,000 nationwide as of 2013.4,5 During the 19th century, one consequence that prostitutes suffered was the inability to secure pensions or health insurance, as they were not considered legitimate workers in the eyes of federal law. Problems also arose due to the apparent inability of both law enforcement and civilians to distinguish between women who were considered to be respectable members of polite society and those who were working as prostitutes. It became mandatory for female sex-workers to carry identification that classed them as Kontrollmädchen, or women who were formally registered with the state as prostitutes. The intention behind this system of regulation was to make a clear contrast between those who conducted themselves properly in the eyes of the state and those who did not.6 The distinction between those who entered into sex-work and those who did not was, in reality, less an issue of morality than one of socioeconomic standing. The registration as a Kontrollmädchen was compulsory for all prostitutes, for many of whom sex-work was not their main source of income but merely a manner of making ends meet during periods of temporary dismissal from work in bourgeois households or factories.7 As a result, these Kontrollmädchen were branded with the stigma of prostitution, isolated from securing more legitimate work, and therefore pushed further toward the sex-work for which they were initially condemned. In fact, by the late 19th century, approximately 66% of all prostitutes had previously worked as servant women, a statistic that served to perpetuate the false image of working-class women as lowly or immoral.8
IV. Significance of the Prostitutionsgesetz and the Introduction of the Amended ProstitutiertenSchutzGesetz The socio-legal position of prostitutes remained unimproved throughout the 19th and 20th centuries until the implementation of ProstG by the German government in 2002, a calculated move that had been designed to ‘clean up’ prostitution and to improve the conditions of those working in the industry. It was hoped that legalization would help expunge the disreputability of prostitution and, in turn, eradicate the sex-trafficking black market, which had developed as a result of illegalization. With the formal legalization of prostitution through ProstG, prostitutes working in Germany have been able to access health care and pension schemes through their newly legitimized profession. The introduction of ProstG also allowed prostitutes to request that contracts of employment be drafted, something which had previously been impossible as a result of illegality.9 In the nineteenth century and prior to ProstG, female prostitutes often faced abuse at the hands of brothel owners and clients who threatened their livelihood if a girl had refused to perform certain aspects of her work. These contracts, although still not universally requested by
4 Ute Frevert, Women in German History: From Bourgeois Emancipation to Sexual Liberation (Oxford, New York: Berg Publishers, 1989), p. 87 5 Daniela Brücker, ´Das „älteste“ Gewerbe der Welt‘, Sozial Extra, 1st February 2013, p. 36 < https://link-springer- com.ezproxy.bangor.ac.uk/content/pdf/10.1007%2Fs12054-013-0013-6.pdf> [accessed 04 January 2018] 6 Frevert, p. 88 7 ibid., p. 87 8 ibid, p. 88 9 Barbara Kavemann and Ass. Jur. Heike Rabe, The Act of Regulating the Legal Situation of Prostitutes – implementation, impact, current developments (Berlin: Sozialwissenschaftliches FrauenForschungsInstitut an der Evangelischen Fachhochschule Freiburg, Berliner Büro, 2007), p. 11
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sex-workers, offer a degree of protection to women against unfair requests made by customers or bosses, which may not have been agreed upon in advance. In 2017, the German Federal Government introduced an amendment to ProstG, the ProstituiertenSchutzGesetz (ProstSch), which is commonly translated into English as the Prostitute Protection Act.10 With this modified law came the introduction of mandatory registration with the state for all sex-workers and the enforcement of strict zones in which prostitution could legally be carried out. The repercussion of this amendment was that many female prostitutes ‘avoided registering with the government and continued to engage in illegal prostitution’ because they felt that the new legislation put them at higher risk of physical danger due to its active concentration of sex workers in specific areas.11,12
V. Nineteenth and Twenty-first Century Comparison: Judicial Overlap and Commentary on Demographic Shift
Upon direct comparison of the regulation of prostitution in both the 19th and 21st centuries, the irony behind the implementation of ProstSch is indisputable. During the 19th century, government regulation of prostitution took the form of Kontrollmädchen identification cards, a practice which clearly marginalized those who carried them. In the 21st century, women are expected to register their intentions with the state – including a place of sex-work – and carry credentials that must be presented upon request from the authorities.13,14 It is clear that there is, in reality, little difference between the approaches to regulation taken in these two time periods, as in both centuries measures have been imposed that indirectly identify women as prostitutes and impress upon them the stigma of being a sex-worker. One can deduce from the clear crossover in method during these two centuries that ProstG has acted as more of a legal façade than an act to revolutionize prostitution in Germany. It must once again be noted that the legalization has afforded sex-workers increased social security and civil liberties, an outcome that has vastly improved prostitutes’ ability to support themselves and their families in the long-term. However, as was the case in the 19th century, prostitutes in contemporary Germany are still forced into public acknowledgement of their work; a stipulation that may lead to a continuation of the marginalization of women sex-workers in an era when federal law is seemingly making strides to legitimize the practice.
10 Hydra, Information about the ‘Prostitutes Protection Law’ that will go into effect nationwide starting 01.07.17 [EN], (Berlin: Hydra, 2017)
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Despite clear changes in the legal position of prostitutes in the last 150 years, the same change is not apparent in the social situation surrounding women in the profession. Throughout the 19th and into the 21st century, women prostitutes continue to be looked down upon while the men who paid for their services carry little to no social burden. The vast majority of prostitutes in the late 19th century came from disadvantaged backgrounds and the profession held strong connotations of poverty, vulnerability, and the lower-classes. This image of the common prostitute as an underprivileged and impoverished woman has continued from the 1800s into contemporary Germany. However, it is the demographic rather than the social standing of these women that has changed – namely, their nationality. Unlike in the 19th century, where the majority of prostitutes were German citizens, contemporary Germany has seen an influx of immigrants from less affluent areas, such as Eastern Europe, who are willing to undertake poorly-paid sex work in order to survive. It is these women that stand to benefit from the implementation of ProstG. Nevertheless, it is important to note that according to a 2007 study conducted by Sociologist Professor Barbara Kavemann, only 43.3% of participating prostitutes believed that their ability to assert their rights would improve as a direct result of ProstG.15 Further to that, a staggering 59% of prostitutes participating in a 2003 study claimed to feel no safer after the passing of the 2002 legislation.16 It is clear from these statistics that, regardless of the change in demographic, the social standing of female prostitutes has not been impacted by the implementation of ProstG in a meaningful way.
VI. Nineteenth and Twenty-first Century Comparison: A Need for Support amongst Female Sex-Workers
As a result of prostitutes’ low social standing in the 19th century and the vulnerability that such perceived dishonor often brought with the profession, there began a flurry of social movements established in their aid. One in particular, the Jugendschutz Gruppe, was established in Berlin by social activist Hanna Bieber-Böhm. Under the Jugendschutz Gruppe, Bieber-Böhm educated women prostitutes on the moral implications of their work and offered food and shelter in the hopes that it would steer them away from the necessity of sex-work.17 Bieber-Böhm, like other ‘respectable’ women at the time, was not in favour of liberalising prostitution. Her cause, however, was helping women move away from a supposedly undignified profession through the provision of moral education and practical support. In the present day, Bieber-Böhm’s group is no longer in operation; however, there are examples of similar causes active in Germany. Hydra is one example of an organization offering funding for prostitutes seeking legal or financial aid and counselling for women affected by violence or mistreatment as a result of prostitution.18 Hydra is based out of Berlin, a densely populated capital city currently experiencing one of the most prominent effects of the European Migrant Crisis: large numbers of underprivileged foreign- nationals entering Germany in search of a temporary or permanent new home. When comparing the aims of both the Jugendschutz Gruppe and Hydra, it is apparent that both initiatives share one
15 Kavemann, p. 16 16 Farley, p. 1096 17 Klaus Bürger, Bieber-Böhm, Hanna Elmira Flora (Deutschland: Stiftung deutsche Kultur im östlichen Europa und Kulturstiftung der deutschen Vertriebenen, [n.d]) < http://kulturportal-west-ost.eu/biographien/bieber-bohm- hanna-elmire-flora-2> [accessed 11 January 2018] 18 Hydra, ‘ Rechtshilfe- und Sozialfonds‘, (Berlin: Hydra, 2017)
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common goal: to support vulnerable women against a dangerous social stigma that has persisted from throughout the last 200 years. Considering one of the objectives of ProstG was the abolition of any stigma surrounding sex work, the existence of a need for such organizations would suggest that ProstG has done little to foster respect for prostitutes or encourage behavior conducive to a safe and stable work environment for women in prostitution.
VII. Conclusion It is evident that, through the legalization of prostitution in Germany, female sex workers are afforded more financial and social security. It is a positive outcome that women prostitutes can now depend on pension and benefit schemes in order to secure a stable future for themselves and any dependents. However, statistics discussed in this paper show that many women prostitutes feel neither safer nor more able to assert their fundamental rights following the passing of the Prostitutionsgesetz. Furthermore, the branding of the act as one of ‘legalization’ is misleading as it excludes many of Germany’s most vulnerable women from exemption from criminal penalties. Throughout both the 19th and 21st centuries, women in the lowest social stratum have suffered as a result of socio-legal attitudes toward prostitution. Although the demographics of this stratum shifted between these two time periods, the women abused, and persecuted today are still members of this social class. The extent to which the introduction of the 2002 Prostitutionsgesetz improved socio-legal conditions for female prostitutes in Germany is astonishingly little. This law, ostensibly a legal revolution, serves only as a passive façade of liberation, doing little to improve the lot of those to whom it applies, and nothing to improve the lot of those who would benefit from it most.
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