Marginalization through the construction of victim-hood via criminal law in the area of prostitution in Germany

The legal framework of prostitution

This blog post will try to deal with the increasing risk of sex worker’ marginalization in Germany through the state’s protective measures. To do this, I will summarize how prostitution in Germany is legally and politically framed and what this means for the rights of sex workers and the policing thereof. It should be noted that sex workers are a very heterogenous group, [1] i.e. numerous forms of marginalization can take place for a singular sex worker – forms of marginalization not directly tied into their occupation. Therefore, I will only focus on disadvantages directly derived from sex workers engaging in prostitution and the disadvantages derived through these activities. By looking at the increasingly repressive prostitution regulation, a paradigm-shift that has also become more notable in Germany, I try to question whether more protection measures are really in the interest of sex workers. Though firstly, a short overview of the recent legal history of prostitution in Germany.

The new century saw a major shift in Germanys official stance on prostitution. Introduced in December 2001, the Prostitution Act (Prostitutionsgesetz, ProstG) would define sex work as a legally recognized enterprise.[2] Prior to this, sex work was understood as immoral and indecent behaviour, that was harmful to society. As such, basic legal protections were not extended to sex workers, until 2002, when the Prostitution Law defined sex work as a legal “occupation”. Before that, business contracts tied to prostitution, for example between buyer and seller, were legally void, since the prostitution was understood as intrinsically immoral. Similarly, businesses associated with prostitution were at risk of closure, as prostitution was only condoned, not legally recognized.[3] Since this official sanctioning of prostitution via the ProstG, discussions about the need for stricter regulation of sex work have flared up over the years.[4] These discussions cumulated into the “Prostitutes Protection Act (Gesetz zum Schutz von in der Prostitution tätigen Personen, ProstSchG), which was ratified in 2017. Not only were sex workers henceforth obligated to register with authorities,[5] the act also implemented health counselling for sex workers and stricter requirements for sex workers and bordellos.[6] More changes now loom over the sex industry’s horizon, just as the Corona-Pandemic in 2020 saw the temporary halt of sex work. With it, new discussions over the implementation of the “Swedish model”, i.e. the criminalization of purchasing sex work, have started to arise among policy makers.[7] In addition to the above mentioned legal framework in which the sex industry operates, sex work is also largely regulated through laws against human trafficking, specifically the Law for the Improvement of the Fight Against Human Trafficking and Amending of the Federal registry Law and Volume Eight of Social Security Code (Gesetz zur Verbesserung der Bekämpfung des Menschenhandels und zur Änderung des Bundeszentralregistergesetzes sowie des Achten Buches Sozialgesetzbuch) enacted in 2016.[8] Currently, the ProstSchG and regulations introduced with the state’s fight against human trafficking set up the legal framework for prostitution in Germany.

Sex workers’ agency and legal protection

While prostitution is, thus, still a legally recognized occupation in Germany, each of these shifts in the regulatory framework are based on different conceptions of sex workers’ agency and situation. From 2002 on, the legal sanctioning of prostitution and the extension of legal protection provided workers with the rights to “sign” business contracts with their customers. Sex workers were also eligible to benefit from social insurance. Underlying this reform was a liberal approach to sex work. Sex work was seen, at least officially, as a choice – an occupational choice that deserved legal protection and enforcement possibilities. Not accounting for regional differences in implementation and social stigma and its influence on legal and law enforcement professionals,[9] these rights should provide sex workers with tools to provide and fend for themselves. The protection of sex workers was, thus, primarily ensured by giving them the right to enter into legally binding contracts, when interacting with third parties. As has been hinted at, the 2002 Prostitution Act did receive its share of criticism, the most prevailing one being in regards to sex workers’ safety. Prostitution, as was argued by some critics, was an inherently risky and exploitative business.[10] While diverging voices did and still do exist, calls for more restrictive safety and protective measures prevailed.

The 2016 Act took, therefore, a less liberal approach. The tools offered to sex workers by the official recognition of their contracts with third parties were deemed not sufficient, hence, new protective measures were needed.[11] An official prostitution registry,[12] tighther standards for prostitution-business and obligatory health counselling were tools that would allow administrative and executive officers to ensure the “safety” of sex workers.[13] Proponents of these stricter regulations publicly argued that the state should ensure that sex workers are not victims of coercion by costumers or procurers. To this end, sex workers, are portrayed as an at-risk group. The responsibility of protecting sex workers’ interest in the area of prostitution lies not with sex workers themselves anymore, but the state organs responsible of supervising prostitution. These can come in the shape of prosecutors and police officers acting on behalf of what has been constructed to be sex workers’ interests. Following this logic, criminal law becomes the modus operandi in prostitution, more so than in other employments, where disputes between parties are commonly settled on the basis of civil law.[14]

This protective approach towards regulating sex work not only serves to protect sex workers from harm, but also brings a host of issues for sex workers, three of which will be shortly explored. The first problem arising from this protection-rationale and the resulting policing strategy is an increased LEA-presence in the sex industry. The second issue is a partial lack of support structures for sex workers who do not fit the “victim”-type established. The third issue is the deepening of social stigmata arising from the rational underlying the established “victim”-type.

The Policing of At-Risk Sex Workers

In line with this protection-rationale and the victim-prototype it is founded on, the sex industry is put largely under the purview of the executive branch.[15] Not just local police forces at that, instead the federal police and customs are primarily responsible for cases of human trafficking, undocumented labour or organized crime.[16] As mentioned above, the heavy regulation via criminal law entails a theoretically high level of police presence, though this is difficult to quantify. Nonetheless, available data from local police enforcement in Berlin suggests an increase in police activity over the years. While seemingly benign, over-policing of sex workers can have negative consequences. Studies conducted on police interaction with victims of sex trafficking in Germany by Leser at al do not point directly to abusive practices, they do nonetheless indicate problems in dealing with “victims” who fail to understand themselves as such.[17]

A more negative picture is portrayed by research in countries that employ stricter approaches. Research conducted on Norwegian policing of prostitution by Amnesty International notes an increasingly antagonistic climate, with sex workers increasingly becoming weary of police harassment.[18] This is also corroborated by research conducted in numerous other countries that take and increasingly repressive approach,[19] such as Canada, where policing is seen to have further ostracized sex workers.[20]  In these countries, sex workers have developed mitigation and harm reduction strategies when interacting with police officers – hinting towards an increasingly antagonistic climate. The policing of sex workers is therefore not necessarily in their interest, instead it can work to further marginalize and harass people involved in prostitution.

Supporting a Victim

With current politics focusing on protecting sex workers from threats of sexual abuse, sexual exploitation and human trafficking, publicly funded support structures largely follow the same logic. Numerous federally funded support structures for sex workers focus on these particular victims, possibly neglecting other problems sex workers might encounter. Notably, the recent efforts of the German BMFSFJ (Federal Ministry for Family Affairs, Senior Citizens, Women and Youth) saw its atrumttention in regards to prostitution largely focused on human trafficking and sexual exploitation of women.[21] Underscoring the fact that German authorities see issues in regards to prostitution being mainly in regards to human trafficking, sexual exploitation and sexual abuse is the lack of BMAS (Federal ministry of Labour and Social Affairs) initiatives targeting sex workers, with the notable exception of EHAP projects (a European support fund for disadvantaged people) and generalized support structures for women affected by violence (which are run by the BMFSFJ).[22] Another example of this is the lack of state-financed legal support structures focused on helping sex workers fight third parties in breach of contracts. While support organizations that provide sex workers with legal advice to actively defend their own interests do exist, they tend to receive little to no state funding.[23]

The access to help for sex workers is mostly relegated to sex workers fitting the established victim narrative. This becomes apparent when looking at countries taking stricter approaches. Research in Sweden notes that the established narrative of inadvertently coerced sex workers has led to support structures almost exclusively focusing on helping sex workers change occupation, failing to provide other services.[24] This is also the case for countries like Norway and Canada.[25] Research from Ireland also indicates that medical support for sex workers is becoming increasingly problematic due to the more restrictive approach of the government.[26] The narratives of victimhood underlying the restrictive shift in Germany, hence, might also limit the support available to and approachable for sex workers, as the narrative, similar to other countries, might serve as a baseline for available support.

Victims, Perpetrators and Protectors

The last issue is the stigmatization of prostitution and sex workers active as such through this construction of victimhood. Via the conception and policing the sex workers as an at risk group that is largely victimized by human trafficking and sexual exploitation, sex workers simultaneously serve as an example of how the state is defining moral/immoral behaviour to construct a moral citizenry and how it legitimizes itself by portraying itself as a moral state. The German state and its involved regulatory and enforcing bodies, from the law makes and prosecutors, to the on the grounds customs officers, are constructed as the institutions acting in the interest of sex workers – protecting and saving them from human trafficking and sexual exploitation. By defining sex workers as mostly victims, the state legitimizes it’s heavy handed policing of sex workers, which in turn serves to legitimize the state. On the other hand, by focusing on the criminal aspect of sex work, moral and immoral behaviour are defined. With a narrative of the sex industry being filled by criminal threats, from exploiting pimps and scrupulous johns, to foreign traffickers; taking over public discussion on prostitution, the diverse sex industry becomes filled with various negative character archetypes.[27] This also extends to the sex workers, as their choice of being involved with prostitution becomes akin to aberrant behaviour.

Research on police work in Germany has investigated how disgust is used in policing to demarcate lines between accepted and unaccepted victimhood, as well as moral and immoral behaviour. Prostitution, in the eyes of the researched LEA, was usually linked to bad choices and personal failures.[28] Studies on countries having implemented the Swedish model further serve as evidence of a link between restrictive prostitution’ regulation and stigmatization.[29] With current debates in Germany about the implementation of the Swedish Model, the public portrayal of sex workers is also shifting. It remains to be seen whether international trends of increased stigmatization of sex workers via the implementation of stricter anti-prostitution measures will be replicated in Germany, if a more abolitionist approach is chosen. Nonetheless, international research suggest that the risk is there.

Protection and Marginalization

In summary, the protection-rationale and its logical conclusion do not only serve to restrict sex workers via heavy-handed policing and stigmatization, but also serve to marginalize them. Paradoxically, the portrayal of sex workers as victims might not empower them, instead, it might disenfranchise sex workers willingly offering sex. Sex workers are increasingly forced into passive victim roles, while the state, especially the executive branch, acts as its active protector. This can be seen from the above-mentioned over-policing of prostitution activities and the lack of self-supporting services for sex workers not corresponding to the constructed ideal – a victim of human trafficking and sexual exploitation seeking to escape prostitution. Sex workers actively seeking to safeguard rights on their own, outside of victims of human trafficking and sexual exploitation, are increasingly side-lined, as arguments derived from the Swedish Model reject sex worker agency a-priori. While it would be wrong to disregard the risks of prostitution or neglect the problems of the 2002 liberal approach,[30] the conflation of prostitution with sexual exploitation and human trafficking might not adequately be able to support sex workers at large. Maybe the question should not be how to protect sex workers, but how to empower and enable sex workers to do so themselves – just as numerous human rights and sex worker organizations have requested.[31]

[1] For data on the demographic diversity, see:

Germany, Federal Statistics Agency “Ende 2018 rund 32 800 Prostituierte bei Behörden angemeldet”, website, n.A.

[2] Germany, Federal Ministry of Family, Seniors, Women and Youth (2007). “Bericht der Bundesregierung zu den Auswirkungen des Gesetzes zur Regelung der Rechtsverhältnisse der Prostituierten (Prostitutionsgesetz - ProstG)”, report, 24 January 2007.

[3] Germany, German Federal Agency for Civic Education (2013). “Zehn Jahre Prostitutionsgesetz und die Kontroverse um die Auswirkungen”, website, 19 February 2013.

[4] For exemplary political documents portraying the political shift, see:

Germany, Bundestag (2014). “Drucksache18/1705”, document, 06 July 2014.

Germany, Bundestag (2014). “Drucksache 71/14”, document, 11 April 2014.

[5] § 3 ProstSCHG, available at “§ 3 Anmeldepflicht für Prostituierte”.

[6] § 10 ProstSchG, available at “§ 10 Gesundheitliche Beratung”

§24-28 ProstSchG, available at “Abschnitt 4 Pflichten des Betreibers”

[7] Leni Breymeier (2020) “Letter to the Winfred Kretschmann”, ministerial letter, 15 March 2020.

[8] §232a StGB, available at “§ 232a Zwangsprostitution”.

[9] Germany, Federal Ministry of Family, Seniors, Women and Youth (2007). “Bericht der Bundesregierung zu den Auswirkungen des Gesetzes zur Regelung der Rechtsverhältnisse der Prostituierten (Prostitutionsgesetz - ProstG)”, report, 24 January 2007.

[10] Germany, German Federal Agency for Civic Education (2013). “Zehn Jahre Prostitutionsgesetz und die Kontroverse um die Auswirkungen”, website, 19 February 2013.

[11] Bundestag (2014). “Drucksache18/183”, document, 24 June 2014.

[12] § 3 ProstSCHG, available at “§ 3 Anmeldepflicht für Prostituierte”.

[13] § 10 ProstSchG, available at “§ 10 Gesundheitliche Beratung”

§24-28 ProstSchG, available at “Abschnitt 4 Pflichten des Betreibers”

[14] Thiée, P. (2005). Von White Slavery, Zwangsprostitution, Opferschutz und dem Wunsch, durch Strafe Gutes zu tun. Kritische Justiz, 38(4), 387-406.

[15] Thiée, P. (2005). Von White Slavery, Zwangsprostitution, Opferschutz und dem Wunsch, durch Strafe Gutes zu tun. Kritische Justiz, 38(4), 387-406.

[16] Zeit (2019) “Razzien wegen Menschenhandels mit 1.900 Beamten”, website, 21 August 2019.

[17] Leser, J., Pates, R., & Dölemeyer, A. (2017). The Emotional Leviathan—How Street-Level Bureaucrats govern Human Trafficking Victims. Digithum, (19), 19-36.

[18] Amnesty International (2016).“The Human Cost Of ‘Crushing’ The Market Criminalization of Sex Work in Norway”, report, 2016.

[19] Example include:

USA: Fernandez, F. L. (2016). Hands up: A systematized review of policing sex workers in the US.

Sweden: Danna, D. (2012). Client-only criminalization in the city of Stockholm: A local research on the application of the “Swedish Model” of prostitution policy. Sexuality Research and Social Policy, 9(1), 80-93.

FUCKFÖRBUNDET (2019). “TWENTY YEARS OF FAILING SEX WORKERS A community report on the impact of the 1999 Swedish Sex Purchase Act”, report, 2019.

[20] Bungay, V., Halpin, M., Atchison, C., & Johnston, C. (2011). Structure and agency: reflections from an exploratory study of Vancouver indoor sex workers. Culture, Health & Sexuality, 13(1), 15-29

Canadian HIV & AIDS Legal Network (2019). “The Perils of “Protection” Sex Workers’ experiences of law enforcement in Ontario”, report, 27 March 2019.

[21] Germany, Federal Ministry of Family, Seniors, Women and Youth (2020). “GREVIO Erster Staatenbericht der Bundesrepublik Deutschland 2020”, report, August 2020.

[22]Germany, Federal Ministry of Labour and Social Affairs (n.a.). “EHAP-Projekte", website, n.A..
Germany, Federal Ministry of Labour and Social Affairs (2018) “Sozialbericht 2017”, report, 2017.

[23] E Deutsche Aidshilfe (2012) “ProfiSEin Wegweiser”, report, October 2012.

CARA*SH (n.A.) “Allgemeines Arbeitsrecht”, website, n.A..

Hydra (n.A.) “Beratung und Unterstützung”, website, n.A..

BUFAS e.V. (n.A.) “BUFAS E.V.”, website, n.A..

[24] Levy, J., & Jakobsson, P. (2014). Sweden’s abolitionist discourse and law: Effects on the dynamics of Swedish sex work and on the lives of Sweden’s sex workers. Criminology & Criminal Justice, 14(5), 593-607.

[25] For example, see:

Amnesty International (2016).“The Human Cost Of ‘Crushing’ The Market Criminalization of Sex Work in Norway”, report, 2016.

Argento, E., Goldenberg, S., Braschel, M., Machat, S., Strathdee, S. A., & Shannon, K. (2020). The impact of end-demand legislation on sex workers’ access to health and sex worker-led services: A community-based prospective cohort study in Canada. PLoS one, 15(4), e0225783.

[26] “HIV Ireland (n.A.). “Sex worker lives under the law:A community engaged study of access to health and justice in Ireland”, report, n.A..

[27] For an example of how archetypes effect police work in sweden, see:
Lindholm, J., Börjesson, M., & Cederborg, A. C. (2014). “What happened when you came to Sweden?”: Attributing responsibility in police interviews with alleged adolescent human trafficking victims. Narrative Inquiry, 24(2), 181-199.

[28] Leser, J. (2019). Performing the body of normalcy – vice squad officers as ‘moral bureaucrats’, At Interdisciplinary workshop “The police and sex work: then and now”, t Berlin, Humboldt University.

[29] For examples, see:

Amnesty International (2016).“The Human Cost Of ‘Crushing’ The Market Criminalization of Sex Work in Norway”, report, 2016.

Canadian HIV & AIDS Legal Network (2019). “The Perils of “Protection” Sex Workers’ experiences of law enforcement in Ontario”, report, 27 March 2019.

[30] Germany, Federal Ministry of Family, Seniors, Women and Youth (2007). “Bericht der Bundesregierung zu den Auswirkungen des Gesetzes zur Regelung der Rechtsverhältnisse der Prostituierten (Prostitutionsgesetz - ProstG)”, report, 24 January 2007.

Futhermore, meta-analysis suggests a possible increase of human trafficking in leiberal approaches to prostitution, see:
Cho, S. Y., Dreher, A., & Neumayer, E. (2013). Does legalized prostitution increase human trafficking?. World development, 41, 67-82.

[31] For examples, see:

BesD (n.A.). “Positions”, website, n.A..

Amnesty International (2016).“The Human Cost Of ‘Crushing’ The Market Criminalization of Sex Work in Norway”, report, 2016.

Sex Workers Alliance Ireland (2017). “Sex Workers Alliance Ireland updated shadow report information for CEDAW”, report, January 2017.