The German Model: Brazil’s new prostitution law

Translated from German

Original published at banishea.wordpress.com on 27 March 2014

The German Model…

mulher nao e mercadoria

“Women are not commodities!”

…right on time for German boys. And for other boys. Right on time for the FIFA World Cup in Brazil.

The German Model, which even parts of the international prostitution lobby dislike, because it largely dispenses with any sort of protection for women.

In July 2012, a bill was submitted in Brazil that was explicitly modeled on the German prostitution law (1).

Just like in Germany before 2002, prostitution is largely decriminalized in Brazil, i.e. those who are independently active in prostitution with their own bodies are not penalized for it. Neither are those who buy temporary sexual access to them. However, brothels, pimping and human trafficking are prohibited. This also means that the profits in these areas are illegal. Similar to Germany between 2002 and 2005, when the German prostitution law and amendments to the laws on pimping and human trafficking (2) were introduced, the government is now planning to intervene on behalf of the profits and profiteers of this industry. (3)

Just like the German law, the Brazilian bill consists of few clauses and paragraphs.

What was left to be decided on a case by case basis in Germany, for instance the question when “exploitation” is actually even given legally, has partly been incorporated into this law already. Here in Germany, the courts at some point decided that pimps collecting up to 50% of the earnings of a woman in prostitution – it’s usually a woman – is not exploitation. In the Brazilian bill, this is already given a specific definition, cf. Section 1, Para. 1.

Furthermore the Brazilian definition of “exploitation” includes the use of “severe”/“serious” violence when forcing women (others) into prostitution: “forçar alguém a praticar prostituição mediante grave ameaça ou violência. (Section 2, Para. 3, emphasis mine). It doesn’t say what that is supposed to mean, what actually constitutes “severe” violence and what, then, is comparatively “mild” violence or violence. This too is reminiscent of the German law, which deliberately left gaps and where it was just assumed that the courts would interpret it according to the legislators’ intentions and decide in favor or the women affected. (4)

The Federal Court of Justice has demonstrated rather impressively what this looks like in practice in the area of sexual violence (Section 177 ff.) (5). Due process resting on modal verbs.

The areas of pimping and human trafficking, where amendments in relation to the prostitution law were only made in Germany in the years after 2002 (2), are already included in the Brazilian package: human trafficking, both across borders and within the country, is an “act of solidarity” that mustn’t be criminalized as long as it isn’t done with the aim of sexual exploitation as provided in the definition shown above.

The German section on human trafficking for the purpose of sexual exploitation, too, was amended in this respect in 2005. (2)

The reasoning is also taken from the German law: the legalization of exploitation (apart from the especially brutal) makes it safer, condoms cannot be distributed to decriminalized, independent women but rather only to brothels and pimps (okay, it doesn’t say it in those words, but that is the only conclusion that makes any sense…). An expansion of prostitution is not the intention. Sexual exploitation only happens as of now because there is no legal distinction between prostitution and sexual trafficking. (6)

Complementary crocodile tears for the under-18-year-olds are included.

At the same time, the bill concedes that “sex workers currently submit to bad working conditions and suffer from premature aging and a lack of career opportunities while having a career that ends early.” (Atualmente os trabalhadores do sexo sujeitam-se a condições de trabalho aviltantes, sofrem com o envelhecimento precoce e com a  falta  deoportunidades da carreira, que cedo termina. Daí a necessidade do direito  à Aposentadoria Especial, …) Therefore, they have a right to an early retirement pension. This is a point that is not in the German law and that also contradicts the important intention of the German law of having the women in prostitution pay into social security.

And although the law supposedly does not intend an expansion of prostitution, the bill explicitly refers to Brazil as a country with a growing economy, a country hosting two large sporting events that attract millions of tourists. This is also the reason for the pressure to get the law passed before June 12 (start of the FIFA World Cup). It is to come into effect one day after being passed.

Brazil is a country with high poverty. Human trafficking for all kinds of reasons (exploitation in agriculture, as domestic servants and for sexual exploitation) is a big problem. Indigenous peoples are especially affected.

They are trying to raise awareness of their plight on Youtube, Facebook and many social networks. That is how I know about them, and that is also where I found this bill.

I hope Germany gets knocked out in the first round.

 

(1) The German Text here was generated by Google Translate, and I mostly did not make any corrections. Emphases mine.

(2) See “Gesetze” on this blog [banishea.wordpress.com]. The links lead to legal websites where you can read about the amendments made. In the case of human trafficking for the purpose of sexual exploitation, formerly Section 180b of the German Criminal Code and thus in the category of laws on offences against sexual self-determination, now Section 232 (category of offences against personal freedom), “sexual acts” has been qualified with the phrase “through which they are exploited”. “Sexual acts” used to be sufficient.

(3) Like many other well-meaning, open-minded people in politics, also among the Greens, the Left, the Social Democrats, I assumed that this law was intended to help those in prostitution and that it would. I still believe many of its supporters when they say that is what they thought. But the more I  research this law, the more bitter I become. Many people want to do good. But we were manipulated by people who wanted to get illegal profits legalized at last and by politicians who wanted to get access to tax money and social contributions. That is the un-sugarcoated truth.

(4) Galen, Margarete, Gräfin von, Rechtsfragen der Prostitution. Das ProstG und seine Auswirkungen. München (C.H. Beck) 2004, p. 25 and 27, partly 31.

(5) There are countless studies on this and increasing pressure on the German Federal Parliament to finally exert some regulatory force and to adapt Section 177 (sexual assault/rape) to European norms and the general sense of justice. But this does not document the misogynistic interpretation of the provisions (especially the force provision for rape, the basically impossible-to-fulfill condition of being “unprotected and at the mercy of the offender”, and the “general extenuating circumstances” in case of longer intimate relationships) as an expression of the German Federal Court of Justice’s ideology. A collection of information on this subject can be found at www.frauengegensexuellegewalt.wordpress.com. It is absolutely not advisable to make the safety of women and others in prostitution dependent on the Federal Court of Jusicte’s sense of justice.

(6)  ” Enforcing the marginalization of the segment of society engaged in the sex trade is to allow sexual exploitation to take place as no distinction is currently made between prostitution and sexual exploitation, which are both pushed to the margins and not monitored by the responsible authorities. // Impor a marginalização do segmento da sociedade que lida com o comércio do sexo é permitir que a exploração sexual aconteça, pois atualmente não há distinção entreaprostituição e a exploração sexual (…)”

 

 

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