Autorin: Pani K. //
Some of the questions asked by the special rapporteurs are addressed below:
1. “How has the concept of consent been defined in general, including in the different jurisdictions?”
Consensus means that everyone involved wants the same thing and has given their valid consent. Consent to sexual activities must be given out of one’s own volition, without external influence. It must be personally and acknowledged before the sexual activities. Consent can be given explicitly verbally or through unambiguous behaviour. Silence alone does not constitute consent. Once given, consent can be revoked at any time, in which case the sexual acts must stop immediately. [2] Consent can be both specific and conditional and cannot be given retrospectively. If negative consequences are to be feared or expected in the event of revocation, consent does not exist. Consent is invalid if:
1. the person is incapable of giving consent (due to alcohol, drugs, sleep…).
2. there is a lack of will (due to error, deception…).
3. there is a lack of knowledge (What will happen? What are the possible consequences?..).
4. distress is exploited (homelessness, hunger, illness…).
5. coercion is present (threat, “will-bending” violence).
6. force is present (“will-breaking” violence).
7. inalienable human right is affected (dignity, life, physical integrity, freedom…). [3]
In prostitution, incapacity to give a consent or exploitation of distress is usually irrelevant and ignored. Although prostitutes cannot revoke their consent without negative consequences, coercion is not recognised. The exertion of influence by means of payment to bend the will is also not recognised as coercion. A lack of will is not assumed, despite the necessary extrinsic motivation (financial or material gain). Each of the above 7 cases is common reality in prostitution!
2. “In what sex and gender-specific crimes has the relevance or irrelevance of consent been invoked? What differentiates them?”
The concept of consent has been incorporated into all laws concerning the right to sexual self-determination. It has also been incorporated into all laws intended to regulate prostitution.
In Germany, persons aged 14 and over may legally consent to sexual acts under certain conditions. Consensual sexual acts between consenting persons from the age of 18 are not punishable. Valid consent cannot be given by children under 14 years of age, or by person in an unconscious state or persons who are heavily intoxicated.
Consent to prostitution (any sexual activities in return for financial or material gain) is legal from the age of 18. Forced prostitution or human trafficking of persons under the age of 21 is illegal without exception; the consent of the victims is irrelevant. [4]
Since the 2016 legal reform, any sexual activities against the recognisable will of a person is punishable. [5] The presence or absence of consent is usually determined by statements from the parties involved. In practice, the question of consent is often difficult to prove.
It is important to consider immanent and inherent forms of violence in prostitution.
Immanent violence: The john wants sex, the prostitute wants payment – this is not a consensus. He buys a Yes because he does not want to accept a No. The payment is a gag for the prostitute and a release for the john. He uses his superiority to suppress her will.
Inherent violence: The john is not just a customer or buyer, as sex cannot be bought and consumed like a dildo. He buys access to the most intimate parts of another person’s body and wants to dispose of this body as he pleases. Either the john pays more so that the prostitute gives in, or he resorts to coercion and violence. Johns commit serious criminal offenses, including murder.
Any form of paysex (prostitution and other sexual activities for payment) is the complete opposite of consensual sexuality. Consensus cannot exist in paysex because:
1. participants do not want the same thing.
2. any offer of payment for sexual activities influences the free decision-making process.
3. any denial of consent has negative consequences.
4. any revocation of consent has negative consequences.
Furthermore, any consent to prostitution is fundamentally invalid, as inalienable human rights are threatened:
5. prostitution violates human dignity.
6. prostitution is de facto equivalent to torture, which occurs repeatedly and lasts for weeks, months or years – it is commercialised systematic rape that is tolerated or legalised by the state. Systematic rape is recognised as a method of torture and is therefore absolutely prohibited without exception. [6]
Paysex is by definition unfree: it is a contract. But no human being has the right to rape other humans, with or without a contract. And no human being can contractually renounce their own human dignity or consent to torture!
4. “For national, regional and international legal frameworks that have incorporated the concept of consent, what has been the impact on women and girls of incorporating consent into national legislation?”
The inclusion of the concept of consent in prostitution in German law has serious negative consequences for women and girls. (Many prostituted women are already involved in prostitution before they reach the age of 18). The legislator applies a double standard – depending on whether sexual activities take place with or without payment. German law defines prostitution as a “sexual service” and prostitutes as persons who provide it. [7] Also, German job centres that have forced unemployed women to provide “sexual service” under threat of financial sanctions. Moreover, German courts have ruled that women in prostitution had to pay 500 Euros because johns were not satisfied. [8]
Although it is illegal to buy sex without a condom (since 01/07/2017) [9] or to use forced prostitutes for sexual acts (since 01/10/2021) [10], johns are rarely or never punished for this. Prostitution is normalised, there are reports of “14-year-olds who prostitute themselves of their own free will”. [11] Rape centres are subsidised, because that is exactly what countless brothels in the middle of German cities are. [12] Commercial torture is legalised and is administered, taxed and advertised everywhere – even with female slaves. [13] Prostitutes are exposed to all of forms of violence. They are affected more frequently and more severely than other women. Generally, violence is carried out by johns. [14]
Almost all johns are male, socially well integrated and of all ages and classes – buying sex is a phenomenon affecting society as a whole. Around 30% of men in Germany have paid for sex at least once. [15] Johns decide to practice their sexuality in prostitution out of inner motivation. They firmly believe that they are entitled to sex with other people, especially women. Also, many johns enjoy being the one who has the power. They openly tell us as prostitutes that they like the feeling of having paid for us, of possessing us. This confirms the imbalance of power, which it actually is. Johns know that prostitutes do not desire them sexually, but only endure them – for financial reasons or existential hardship. Many johns prefer inexperienced, desperate, disadvantaged and defenceless women. They demand sex with underage, pregnant, anorexic and other very vulnerable women. Johns prefer dangerous and harmful sexual practices. Shared consumption of alcohol or drugs is often expected or forced. Many johns also behave disrespectfully, intrusively and aggressively towards women outside of prostitution. [16]
At least 119 women have died violently in German prostitution since 2000. [17] Many of these victims were mothers, their desperate children are left behind as orphans, often abroad and without help. Violent offenses against prostitutes are rarely reported, resulting in more known murders than known attempted murders of prostitutes. In response to violence, the corresponding statistical recording was abolished so as not to stigmatize “sex work”. The hardships and suffering of prostitutes are ignored, they are left alone and forgotten.
The ubiquitous trivialisation of the sex buying defies reality and increases the number of victims of prostitution and sexual exploitation in Germany: here torture is renamed as work and service, while inalienable human rights degenerate into a question of individual negotiating skills. Supposed voluntariness has ultimately only legitimized violence by johns and sanctions against prostitutes. Buying sex has been normalized. Brothels, pimps and even human traffickers receive state subsidies. [18] The police and judiciary are powerless. [19] Violence, oppression and exploitation in prostitution were recognized while at the same time, the assumption that prostitution is a service is still valid.
11. “Moving forward, how should States and other relevant stakeholders engage with the issue of consent?”
In order to prevent and end violence in connection with prostitution, it is essential to prevent prostitution and eliminate its causes. Demand is both, the root and the solution to the problem. Without effectively combating demand, prostitution cannot be abolished. Without the abolition of prostitution, sex-based violence, human trafficking and modern slavery cannot be eliminated.
Is it really important whether consent to sexual activities in return for payment can be hypothetically valid? The only crucial question is: Should johns be allowed to do what they do in prostitution and pasex in general? Should humans be allowed to impose and inflict on other humans what happens every day when buying sex?
We say: No! No human being is allowed to do that. Nobody must have the freedom to buy a Yes. Nobody must have the right to buy their way out of their own crimes. Sexual pleasure cannot justify the destruction, suffering or death of women or girls. Nothing can compensate for or redefine these crimes.
And as long as johns are allowed to rape and to torture for payment, all women and girls are neither free nor equal nor safe. As long as access to a human being’s body can be bought, every human being is a commodity. However a sex purchase ban alone is not sufficient – the system of prostitution can only be abolished with a systemic approach: namely by the equality model, like in France or Sweden. [20]
12. “What alternatives would put the burden of proof on the perpetrators and not the victims, on unequal power relationships?”
There is no need for complex legal arguments in this discussion. As women who were or are in prostitution, we can clearly testify that almost all prostitutes don’t want to have sex with johns or to be in prostitution at all. Even the johns themselves confirm this!
As an organisation of affected women and survivors of prostitution and other forms of sexual exploitation, Netzwerk Ella calls for prostitution to be abolished as a system of sex-based violence, oppression and exploitation that primarily affects women and girls. In particular, help for prostitutes and survivors must include more than decriminalisation and livelihood security. Consent to sexual acts in return for payment must be invalid! The commercialised and immanent violence in prostitution must be considered cruel treatment and torture!
We recommend implementing a systemic approach: [21]
1. Help for persons those affected by prostitution or sexual exploitation.
Decriminalization and guaranteed state assistance for affected persons and survivors to leave sex industry. Abolition of any taxes or levies on offering or practicing sexual services. Providing comprehensive programs that enable health rehabilitation, social reintegration and viable alternatives for those affected. Protection and recognition as victims of violence with the right to asylum. Help for family members of affected persons, especially their children.
2. Elimination of all profits from prostitution or sexual exploitation of other people.
Criminalization of all profiteers from prostitution or sexual exploitation of others and confiscation of all their related profits. Prohibition of selling pornography featuring real persons, excluding own pornographic content. Combating all forms of pimping. Prohibition of any state or municipal revenue from prostitution or sexual exploitation.
3. Education about prostitution and sexual exploitation.
Societal education focusing young people about the destructive consequences and significant dangers of prostitution and pornography. Help for young people at risk and their parents. Age-appropriate education about equality of sexes and sexual self-determination in schools. Support for survivors’ organizations providing education.
4. Prevention of prostitution and sexual exploitation.
Consent to sexual acts in return for payment (financial or material gain) must be invalid. Combating the demand for prostitution, including the ban on buying sex and punishing johns as soon as they offer payment. Combating the demand for pornography featuring real persons. Combating all forms of violence against women and girls. Eliminating sexism, female poverty and disadvantage.
5. Effective work of state services.
Training and further education of all responsible institutions and services. Appropriate contact persons, sufficient female specialists. Involvement of survivor’ organisations as experts and advisors in all measures. Ethical guidelines for all employees of state services that explicitly prohibit the purchase of sex and the consumption of commercial pornography featuring real persons.
Prostitution – like slavery and torture – must be abolished!
With best regards,
Pani K., Speaker of Netzwerk Ella, Germany
27/01/2025
Footnotes and references:
[1] Netzwerk Ella is a network of women who were or are in prostitution. It was founded to give women in and after prostitution a platform and a voice. We do not profit from third-party prostitution and do not co-operate with profiteers in the sex industry or their representatives. As an independent organisation of affected women, our network is the voice of those who are not represented by organisations that advocate prostitution and sex industry. We demand that prostitution be abolished as a system of sex-based violence, oppression and exploitation that particularly affects women and girls. Homepage: https://netzwerk-ella.de/
[2] Von Rueden: Welche Bedeutung hat die Einwilligung des Opfers im Sexualstrafrecht?, https://www.rueden.de/anwalt-strafrecht-berlin/anwalt-sexualstrafrecht-berlin/einwilligung-opfer-sexualstraftatrecht/ (accessed on 25/01/2025).
[3] Juracademie: Einverständnis und Einwilligung, https://www.juracademy.de/strafrecht-at1/einverstaendnis-einwilligung.html (accessed on 25/01/2025).
[4] Strafgesetzbuch, § 232, https://www.gesetze-im-internet.de/stgb/__232.html (accessed on 25/01/2025); Strafgesetzbuch, § 232a, https://www.gesetze-im-internet.de/stgb/__232a.html (accessed on 25/01/2025).
[5] Strafgesetzbuch, § 177, https://www.buzer.de/177_StGB.htm (accessed on 25/01/2025).
[6] Was ist Folter?, in Amnesty International Schweizer Sektion, https://www.amnesty.ch/de/themen/folter/zahlen-fakten-und-hintergruende/was-ist-folter (accessed on 25/01/2025).
[7] Prostituiertenschutzgesetz, § 2 (2), https://www.gesetze-im-internet.de/prostschg/__2.html (accessed on 25/01/2025).
[8] Gleich: Kein Orgasmus: Freier verklagt Prostituierte (13/02/2020, last updated 03/03/2023), in ZVW, https://www.zvw.de/lokales/winnenden/kein-orgasmus-freier-verklagt-prostituierte_arid-148075 (accessed on 25/01/2025); Mau: Der Staat als Zuhälter (26/02/2020), in Kontext Wochenzeitung, https://www.kontextwochenzeitung.de/debatte/465/der-staat-als-zuhaelter-6533.html (accessed on 25/01/2025).
[9] Prostituiertenschutzgesetz, § 32, https://www.gesetze-im-internet.de/prostschg/__32.html (accessed on 25/01/2025).
[10] Strafgesetzbuch, § 232a, https://dejure.org/gesetze/StGB/232a.html (accessed on 25/01/2025).
[11] Lumpe: Wuppertal: Freiwillig in die Prostitution mit 14? (20/11/2023), in WDR, https://www1.wdr.de/nachrichten/rheinland/ermittlungen-jugendliche-zuhaelter-prostitution-wuppertal-100.html (accessed on 25/01/2025).
[12] König: Keine Corona-Hilfen für zwielichtige Bordelle (02/12/2020), in CDA, https://www.cda-bund.de/aktuelles/dagmar-koenig-keine-corona-hilfen-fuer-zwielichtige-bordelle/ (accessed on 25/01/2025).
[13] Sklavinnenstudio, Abenteuerland Subkultur, https://abenteuerlandsubkultur.de/sklavinnenstudio/ (accessed on 25/01/2025).
[14] BMFSFJ: Lebenssituation, Sicherheit und Gesundheit von Frauen in Deutschland. Eine repräsentative Untersuchung zu Gewalt gegen Frauen in Deutschland, Teilpopulation 2 – Prostituierte (2004), p. 47: „For example, 68% of the prostitutes surveyed stated that they had been afraid of being seriously or life-threateningly injured in situations of physical violence since the age of 16, and 72% in situations of sexual violence since the age of 16. In the main study, this proportion was significantly lower at 40% for physical violence and 44% for sexual violence.“, p. 43: „Women who made specific mentions in this category were by far the most likely to name johns as perpetrators.“ [translated by us], https://www.bmfsfj.de/resource/blob/84328/0c83aab6e685eeddc01712109bcb02b0/langfassung-studie-frauen-teil-eins-data.pdf (accessed on 25/01/2025).
[15] Döring et al.: Men Who Pay For Sex: Prevalence and Sexual Health (2022), https://www.aerzteblatt.de/int/archive/article/224168 (accessed on 25/01/2025).
[16] Farley et al.: Men who pay for sex in Germany and what they teach us about the failure of legal prostitution. (2022), https://prostitutionresearch.com/wp-content/uploads/2022/11/Sex-buyersEnglish-11-8-2022pdf.pdf (accessed on 25/01/2025).
[17] Frauenreferat Wiesbaden: Kommunale Strategien zur Prostitution (2025), p. 3-4.
In 2023, at least three women were murdered, one of the known victims: name unknown, 31 years old, female. Mannweiler, SWR: Mord in Koblenz: Prostituierte grausam getötet (30/11/2023), „The seized photos as well as the outward appearance of the tortured victim are disturbing even for experienced investigators and reveal an inhuman cruelty that is shocking and repulsive“ [translated by us] https://www.swr.de/swraktuell/rheinland-pfalz/koblenz/mord-ermittlung-koblenz-rauental-frau-gequaelt-100.html (accessed on 25/01/2025).
[18] BZ: Sieben Bordelle mit Zwangsprostituierten (03/01/2022), „In reality, she was allegedly the boss of a call girl ring with forced prostitutes – and received 7500 euros in Corona bridging aid!“ [translated by us] https://www.bz-berlin.de/polizei/menschen-vor-gericht/sieben-bordelle-mit-zwangsprostituierten-die-schock-anklage-gegen-die-puff-patin (accessed on 25/01/2025).
[19] Bayerischer Landtag: Protokoll der Anhörung „Situation der Prostituierten in Bayern“ (2022), p. 34, Sporer: „The Lower Saxony Criminological Research Institute comes to the conclusion that no improvement can be seen as a result of the criminal offenses reformed in 2017 and that at least 90% of human trafficking offenses remain in the dark and 83% of investigations had to be discontinued.” [translated by us], https://www.bayern.landtag.de/fileadmin/Internet_Dokumente/Sonstiges_P/PII/Anhoerungen/SO/065_SO_120522_Anh_Prostitution_Protokoll.pdf (accessed on 25/01/2025).
[20] Entschließung des Europäischen Parlaments 2013/2103(INI) (26.02.2014), https://www.europarl.europa.eu/doceo/document/TA-7-2014-0162_DE.html (accessed on 25/01/2025); Entschließung des Europäischen Parlaments 2022/2139(INI) (14.09.2023), https://www.europarl.europa.eu/doceo/document/TA-9-2023-0328_DE.html (accessed on 25/01/2025).
[21] Netzwerk Ella: Input to the report of the Special Rapporteur on violence against women and girls to the Human Rights Council on prostitution and violence against women and girls (2024), https://netzwerk-ella.de/index.php/2024/02/09/input-to-the-report-of-the-special-rapporteur-on-violence-against-women-and-girlsto-the-human-rights-council-on-prostitution-and-violence-against-women-and-girlssubmitted-by-netzwerk-ella/ (accessed on 25/01/2025).