We are excited to share the next installment of our 2020 Student Blog Series! The student blog series highlights original pieces authored by first-year law students at Villanova University Charles Widger School of Law. Read on for Maximillian Santiago’s contribution to the Student Blog Series.
Eighteen years ago, the German Bundestag (Federal Parliament) passed a relatively uncontroversial piece of legislation called the Prostitutionsgesetz with broad bipartisan support. The main goal of the legislation was to abolish the status of prostitution as sittenwidrig, an act offending public morals. Prior to this legislation, prostituted persons did not enjoy Germany’s generous worker protections, eligibility for contribution to national pension and benefit plans, or the ability to recover from a client or employer who defrauded them. Additionally, because public advertisement and solicitation of prostitution was prohibited, the commercial sex trade was often driven into Germany’s criminal underworld.
The misguided and unrealistic goals of the 2002 act were to elevate prostitution to the same status as any other labor, providing access to legal remedies, protective labor regulations, and safeguards against sexual abuse. Employment contracts with escort agencies or brothels would become enforceable under the act, and clients who avoided payment could be pursued in small claims court. Another notable feature of the 2002 law was the “Limited Power to Give Instruction.” Operators of brothels or escort services could mandate minimum hours or regulate what sorts of acts could and could not occur in their business, but they could not force their employees to engage in commercial sex with any particular client. Likewise, prostituted people were to retain the full power of consent, with the legal right to refuse any client or end any encounter at their discretion, without repercussions. To deter human trafficking, a client’s fee could not be collected by or assigned to anyone but the person engaging in the sex act.
Soon after the act became German law, the true severity of the oversight of the Bundestag began to resolve itself to the horror Germany’s prostituted people. First and foremost, lawmakers and advocates alike deluded themselves that a clear line could be drawn between legal, consensual prostitution and criminal, non-consensual prostitution, and that the former was safer, healthier, and less exploitative than the latter. No one predicted how market forces surrounding legalized prostitution would converge to create deplorable (though legal) working conditions, and contemporary reporting suggests such matters were never a focus of concern when the legislation was put to vote. The Bundesrat (Germany’s Federal Council, representing the 16 states) took little interest in the act or its principles, and state governments made little meaningful outreach to help prostituted persons enroll in available social welfare programs or services.
The complete failure of Germany’s legalization efforts are well documented in eighteen years of research and reporting, from anecdotes on deplorable conditions by prostituted people themselves to the outcry of medical professionals like Dr. Ingeborg Kraus, who have treated the victims, legal and trafficked alike, of Germany’s failed social experiment in legalized prostitution. But critics need not rely on advocates or scandalous news stories to condemn Germany’s legalization experiment; this official report by the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth does so quite well on its own.
Categorically, the report revealed a failure to achieve significant progress with regard to the social goals of the Prostitution Act. On the matter of legal remedies for defrauded workers or coercion in violation of the brothel owner’s limited power to give instruction, the ministry found little evidence that workers had availed themselves of the courts, opining that the relative anonymity of clients, and the fact that any claims would have to be filed under a real name as opposed to a work persona, deterred legal action. On the matter of regular employment for prostituted people, the report likewise found that contractually employed prostituted people were practically nonexistent. In the sample population, just 1% of prostituted persons were formal employees of a legally established brothel or escort service. Operators of brothels or escort services preferred a freelance system, worried that setting fixed hours or a weekly client quota through a contract of employment would make them liable under the revised criminal code for the “exploitation of a prostitute” or “dirigiste pimping.” Instead, operators charged each worker an exorbitant rate for the daily rental of a private room or a steep commission on each referred client. Operators of German brothels and escort services continued to enjoy lavish profits while dodging the responsibilities of a German employer to its employees.
While financially exploitative and contrary to the social goals of the Prostitution Act, this freelance arrangement is perfectly legal. Like a supply and demand lesson written by Faust’s Mephistopheles, German prostitution has commodified a generation of Eastern European migrants. Some flee poor post-Soviet countries while others are brought by traffickers, tricked, or kidnapped into the commercial sex trade. The exact number is unknown, but current estimates range from 200,000 to 400,000 female prostituted people in Germany, 95% of them immigrants. The vast influx of prostituted people after prostitution was legalized caused the value of sex as a commodity to plummet; in some places, the market rate for an hour with a prostituted person dropped below €30 (~$32). Likewise, the demand of a booming population looking for a place to conduct business drove the development of so-called mega-brothels, where hundreds of sex workers were charged upwards of €130 per day to keep a room. Perhaps the most shocking product of the legalized sex economy were literal open buffets of debauchery. Facing a minor recession in 2009, many brothel owners moved to a flat-rate model. For as little as €70 (~$75.00) a night, customers enjoyed an open bar, unlimited buffet, and to engage in sex acts with as many prostituted persons as they wanted. While this twisted innovation was officially condemned as an abuse of human dignity, only a handful of police raids were ever made, and such institutions still operate across Germany under the guise of sex clubs.
In 2017 the German government passed a second law, the Prostitution Protection Act, desperately trying to reverse the damage of the 2002 law without recriminalizing prostitution. It required each prostituted person to register with the Federal Government, confirming they were of legal age and willingly engaged in prostitution, to attend a class on healthcare resources, and to practice protected intercourse with all clients. Brothels were also required to register for a business permit and submit to an inspection, certifying that all rooms had emergency telephones, sanitation standards were met, and no prostituted people were being made to sleep in the same room where they worked. In theory, this law purported to correct some of the mistakes of 2002’s Prostitution Act. In practice, the law is unenforced and unenforceable. Hamburg is representative of the failure of the new law. A German public broadcaster reported 4,000 to 6,000 prostituted persons are known to work in the city. In the year following the new protection law, just 600 of them applied for a legal permit, and of those 600, only 150 were successfully vetted and issued their permit. One can only speculate why the issuance rate was so low.
There are many who believe the sex trade can exist separate from abuse and exploitation, and that those who oppose legalization are either prudish moralists or paternalistic social reformers. Peering into the abyss of legalized prostitution in Germany reveals an uncomfortable truth: the dangers and abuses of the sex trade are not a product of its widespread criminalization across the community of nations. Exploitation is fundamentally embedded in the purchase of sex, and decriminalizing the sex trade will not change that.
Maximillian Antonio Santiago Jr. is currently a first-year student at Villanova Law. Maximillian was raised in Williamstown, New Jersey. While a student at Williamstown High School, Maximillian led the creation of the Military Hall of Honor as part of his Eagle Scout Service Project. During his undergraduate career, Maximillian was President of the Rowan Center for Holocaust and Genocide Studies Student Association. He graduated from Rowan University summa cum laude in 2019, majoring in History and minoring in Asian Studies, with a certificate in Japanese. After graduation from law school, Maximillian intends to pursue medical malpractice.