After two years of negotiations, the German Federal Ministry for Families, Senior Citizens, Women and Youth shared its second draft of a new prostitution law last week.
A reform has been on the cards since elections in 2013, with the governing coalition agreeing that prostitution should be reformed, in part to better protect the victims of human trafficking.
But so far there has been no consensus on what exactly has changed – and how to respond – since the law was last updated in 2002.
Why should the law be changed?
Researchers agree that the 2002 law, widely decried as “legalizing prostitution” and blamed for an increase in human trafficking, has never been fully implemented.
But that hasn't stopped politicians and the media from loading blame for the supposed catastrophic state of sex workers in Germany onto these three paragraphs – using the law to score easy points with the public.
Few in Germany or abroad questioned the idea that the law had led to an explosion of human trafficking in Germany and left many sex workers “unprotected”.
The idea that trafficking had increased was even aired in the recent campaign to prevent Amnesty International adopting a stance supporting the decriminalization of sex work.
But nobody bothered to fact-check the claim of increased trafficking.
If they had, they would have found that that sex work had been legal long before 2002, and that human trafficking has actually been steadily decreasing according to official statistics of the Federal Criminal Bureau (Bundeskriminalamt).
Currently, every year about 600 people (557 in 2014) are officially recognized as victims of trafficking for sexual exploitation – a fall of 43 percent since the peak in 2004, when 972 victims of human trafficking were identified.
A concerted campaign against legal sex work
So if trafficking isn't the scourge it's presented as, what's behind the push for reform?
It's certainly been spurred by a perceived increase in sex businesses and migrant sex workers from Romania and Bulgaria.
But most of all there has been a concerted campaign to backtrack on the 2002 law and to restrict the legality of sex work.
Two years ago, just after the elections, an anti-prostitution campaign launched by media entrepreneur Alice Schwarzer decried the supposed failure of the 2002 law, denouncing a rise in sex trafficking. She called Germany “Europe’s Brothel”.
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Veteran left-wing feminist Schwarzer has long sided with law-and-order hardliners from the Christian Democratic Union (CDU) and Christian Social Union (CSU) on prostitution.
She agreed with their calls for sex workers to be subject to compulsory medical checks and forced to register with the police, as well as overall police surveillance of sex workers and sex businesses.
At the same time, she ignored that politicians for the CSU were involved in the construction of a brothel as investors in the Bavarian town of Dachau. For them, it was just a “business like any other”.
Protection through coercion is bound to fail
While compulsory medical checks – a measure that today is considered a human rights violation – are off the table in the draft law, the establishment of what activists call a national “whore database” is not.
Before registration, sex workers (but not clients) would need to undergo mandatory health counselling, where leaflets on their rights and duties will be handed out. One of the explicitly mentioned duties: pay taxes.
Both registration and mandatory counselling have been widely criticized by NGOs, such as the German Women’s Council and the German Association of Women Lawyers, but also NGOs with a religious background such as the Diakonie.
All of them oppose the introduction of compulsory measures expected to stigmatize sex workers.
The introduction of additional layers of bureaucracy would also worsen the lack of trust many sex workers have towards the authorities. This is especially true for migrant sex workers from countries where police violence and corruption thrives.
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But the idea of compulsory registration goes further: The goal is to prevent those pushed into sex work by force or circumstance from registering.
That means women who sell sex for survival would be pushed into working illegally if refused registration, risking fines of up to €1,000 – on top of the poverty that drove them into sex work.
So much is obvious from prostitution rates in, for example, the USA, where sex work remains illegal across much of the country.
What's more, the new law shows staggering naiveté by suggesting that a bureaucrat could recognize a victim of trafficking in the sterile environment of an office.
Research shows that even experienced police officers and social workers find it hard to recognize trafficking. Trust towards the authorities is essential to exposing it. But that trust would be destroyed by compulsory registration under threat of a fine.
And what if officials do decide to someone may be a victim of trafficking once they've already been registered as a sex worker?
It's very likely that proving that status to the police would be much more difficult – after all, the state would have declared that person to be doing sex work “willingly” by allowing them to register in the first place.
It's not hard to imagine the authorities dismissing claims by sex workers with reference to the “Whore ID” – the proof that sex work is “voluntary”.
Sex workers' rights don’t matter
Critics have drawn on the Constitution and human rights law to oppose what they call the “Whore ID”. But Germany's government is keen to wriggle around such rights.
They've already abolished sex workers' right to “inviolability of the home”, essentially allowing the police to enter their apartments whenever they wish.
Suspicion of sex work would be enough to enter the premises – thus putting anyone, especially women, with an active sex life and multiple partners at risk of such raids – unlike the situation now, when all sex work is legal.
In times of increasing attacks on women’s sexual self-determination, it's easy to imagine sexist neighbours denouncing such a woman as an unregistered “whore”.
Such critique is unwelcome and unheard among the governing parties, who insist they want to protect women – despite being made aware of the failings of their proposed law.
In official commentary on the draft law, they have admitted that sex workers may not submit to it and simply not register. In that case, the law would have failed.
Whorephobia against sex workers
Despite the obvious weaknesses of the proposed law, critics and in particular sex workers’ rights organizations, such as the newly founded BesD, the federation for sexual and erotic services, are being attacked as the “prostitution lobby”.
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Anti-prostitution campaigners have been quite successful in publicly discrediting anyone who critically engages with calls to abolish prostitution or to tighten the policing of sex workers.
Instead of asking sex workers with good working conditions how everyone in the sex industry could achieve them, the best-off sex workers are being discredited as “privileged” – as if such “privilege” wasn’t something every person selling sex deserves.
And while sex workers are attacked as “prostitution lobbyists”, CSU politicians, and more generally, male brothel owners are barely ever criticized in the media. The media bias against sex workers remains.
No wonder that the planned law reflects what sex workers call “whorephobia” – the hatred, disdain and sense of disgust that many still feel towards sex workers.
Sonja Dolinsek is a researcher at the University of Erfurt working on the politics of sex work and anti-trafficking. Find her on Twitter here.