Photo by Hydra's Peers.

Germany legalised sex work in 2002. While official statistics from the Federal Crime Office suggest that this decision has resulted in an overall decrease of human trafficking, German critics of the 2002 law contend that it has instead had a negative effect. In 2013, Alice Schwarzer, an anti-sex work activist, was instrumental in convincing the Christian Democratic Party (CDU), Germany’s biggest party, that new legislation on sex work was required to combat trafficking. For two years, the German Ministry for Women, Seniors, Youth and the Family negotiated the new law in an attempt to bridge the divide between a repressive approach favoured by the CDU and the rights-based approach of the Social Democrats.

Campaigns against the normalisation of sex work have been consistently justified in anti-trafficking terms. The German case is no exception to this trend, and the argument here is just as weak as in other countries, with ideology standing in for evidence. On this occasion, however, some campaigners have openly acknowledged that their true interest and agenda is to counter Germany’s public image of being “Europe’s brothel” by reducing sex work and its visibility. It should therefore come as no surprise that the new legislation is aimed to both police and punish the whole sex industry.

Regulate to deter

It is important to emphasise that the proposed legislation contains important elements that are not found elsewhere. Instead of seeking an outright ban on sex work, or the popular ‘Nordic’ model, which remain the preferred options for anti-sex work activists globally, the German legislation is instead designed to regulate and repress the lives and livelihoods of sex workers under the guise of both ‘protection’ and ‘public order’. Instead of strengthening the legal position of sex workers and victims of trafficking towards third parties, the law will instead weaken existing protections and infringe on human rights and civil liberties.

Sex workers will acquire a unique – and therefore discriminatory – duty to formally register in each town they will work in.

The key provision of the new legislation involves mandatory registration as sex workers and mandatory health and legal counselling about rights and duties, such as the payment of taxes. This registration process has been sold as much the same as registration for any other German citizen, but there are some crucial differences. Sex workers will acquire a unique – and therefore discriminatory – duty to formally register in each town they will work in. This requirement extends to compelling all sex workers to carry a special ‘prostitute ID’ with them during their work to prove their ‘legal’ status and, indirectly, the voluntary nature of their sexual labour during police controls. In addition, the policing of sex workers is outsourced to brothel owners, who have to keep physical records of all the sex workers in their establishment. This means that only registered sex workers will be allowed to work in a brothel, which is minimally defined as any place where more than two sex workers work together.

These moves also need to be seen in the context of Germany’s unpleasant history of government treatment of prostitutes, including forced gynaecological exams until well into the 1970s, along with deprivation of civil, social, and economic rights. Liberal laws (for some) were always “juxtaposed with rigid control”. While sex work was, technically, never illegal, sex workers and women suspected of engaging in sex work were highly policed and subjected to discriminatory treatments and rights violations.

The prostitute ID is likely to be confused with ‘voluntary’ sex work, so that anyone with the correct ID will be quickly placed in the ‘voluntary’ category.

Registration is also tied to counselling sessions, which are supposed to identify potential victims of trafficking and to build trust in a situation which, ironically, is itself coerced. Given the impossibility of identifying victims of exploitation in a routinised bureaucratic procedure of probably not more than 15 minutes, the likelihood that actual victims of exploitation and trafficking will be registered, and thus count as ‘voluntary’ sex workers is very high. Critics have warned that the prostitute ID is likely to be confused with ‘voluntary’ sex work, so that anyone with the correct ID will be quickly placed in the ‘voluntary’ category.

The proposed legislation has been criticised on many fronts, including by the German sex worker organisation Bundesverband für sexuelle und erotische Dienstleistungen (BesD), the German Women’s Council, the Women Lawyer’s Association (Juristinnenbund), the Deutsche Aids-Hilfe (German Aids-Aid), the Diakonie (a social welfare organisation of Protestant churches). One powerful challenge has come from social workers, who have questioned the wisdom of mandatory counselling, which is likely to destroy relationships between sex workers and social workers. They argue that the existing model, which involves voluntary, anonymous and confidential services, should instead be preferred.

Major concerns have also been expressed regarding data protection, with critics arguing that information regarding sexuality and sexual labour should not be collected unless it serves a goal that could not be otherwise achieved without infringing the civil rights. As human rights consultant Marjan Wijers has argued, there is no support for the goal of protecting other groups, such as Jews or homosexuals, via compulsory registration, so why is this a legitimate option for sex workers? To what purposes might this information be directed? Further complicating matters, sex workers who fail to register will be punished. Christian Democrats such as Erika Steinbach have called for fines of up to €1000.

A short history of registration and state coercion

The registration of sex workers has long historical roots in Germany. From 1871 to 1927 sex workers had to register with the police and to submit to gynaecological examinations to work legally. Non-registered sex workers were criminalised, while registered sex workers had their civil rights restricted in various ways, including restrictions that confined them to specific locations.

From 1927 until 2000, laws to prevent venereal diseases were used to regulate sex work and ‘promiscuity’ more generally.

The international abolitionist movement founded by Josephine Butler strictly condemned this legal regime as a form of “enslavement”. According to Butler, compulsory gynaecological examinations were nothing short of “instrumental rape”. Opposition to the regulatory system eventually led to its abolition in 1927, when prostitution was effectively decriminalised and disappeared from legal codes. With the exception of the Nazi period and the years up to 1949, there were no official prostitution laws in Germany.

There was, however, one important loophole: the prevention of venereal diseases. From 1927 until 2000, laws to prevent venereal diseases were used to regulate sex work and ‘promiscuity’ more generally. Women were specifically identified as vectors of venereal diseases, so any women engaging in “frequently changing intercourse” (häufig wechselnder Geschlechtsverkehr) could, and often were, forcibly brought to health care offices for inspection. On the basis of a physical examination, they would be registered as either an “official” or “secret” prostitute. Until at least the 1970s, various German ‘experts’, criminologists and social workers regarded female promiscuity and prostitution as differences of degree, rather than kind. This law appears to have been overwhelmingly applied to women engaging in non-marital sex. At least up until 1968, female students engaging in casual sex could be subject to compulsory examination.

Forced examinations do not feature in the current legislation. However, they did feature in early discussions over what the legislation should look like amongst Christian Democrats and their allies. During these negotiations, Alice Schwarzer, while calling herself an abolitionist, supported the compulsory health examination of women and registration with the police. This is emblematic of the dangerous turn that German anti-prostitution activism has taken in recent times. Wilfully ignorant of Germany’s long and shameful history of state targeting of sex work and sexuality, the new German abolitionists are willing to support all kinds of punitive measures which both echo and further expand upon the past.

Wilfully ignorant of Germany’s long and shameful history of state targeting of sex work and sexuality, the new German abolitionists are willing to support all kinds of punitive measures which both echo and further expand upon the past.

The myth of German legality

The German public has displayed little or no awareness of the dangers associated with government abuses of human rights when it comes to sex work. This is largely because there is a widespread belief that sex work is fully legal and without restrictions. Few people are aware of the indirect criminalisation of sex workers through provisions that confine them to “restricted areas”, and even fewer people take an interest in the increasing number of sex workers who have been fined and jailed under existing legislation. Press reports on the extent of the criminalisation of sex workers are hard to come by. What media reports we have chiefly focus on Hamburg, Dortmund and Stuttgart, where hundreds of sex workers have been imprisoned for either repeatedly working on the wrong street corner or for not being able to pay fines for infringing on existing regulations. According to the official police statistics, over 1500 persons are prosecuted every year for selling sex in the wrong place.

Sex work laws as issues of social and historical justice

The new legislation may be well-intentioned, but it is naïve to its core. Its provisions are not informed by reliable evidence on the nature and extent of trafficking, exploitation, or other forms of bad working conditions. Expert knowledge rarely makes it into the public domain, thus contributing to the ritualised reproduction of false claims and myths about sex work in Germany. Spectacular claims about Germany being “Europe’s brothel” have shifted both national and international perceptions of legal sex work as a wrong direction to take.

This shift is deeply intertwined with the intensifying crackdown on reproductive and sexual rights and on the legal gains of social movements towards decriminalising ‘deviant’ behaviours, including sex work and abortion. The shift is also symptomatic of a larger right-wing backlash and its focus on the control of women’s bodies as a proxy for the body politic of the nation. In fact, in line with German tradition of framing prostitutes as dangers to the family and community, the law defines sex workers as a public danger against which the police and other authorities will be able to intervene at any time.

Ignorance about the injustices and human rights violations committed against sex workers in German history and beyond contribute to the lack of interest for sex workers as a matter of social justice and civil and human rights. In 2015, Angela Merkel herself called for Japan to acknowledge and apologise for the sexual violence inflicted on women in military brothels during World War II. Instead of passing this new law, Angela Merkel should apologise for the injustices and human rights violations committed against women and sex workers of all genders on German soil.