Sex work and law
You should also be aware of some legal aspects of sex work – this will make you a better professional and will make your work easier. Here are some of the most important information:
The “Prostitutionsgesetz” (“Prostitution Act”) came into force in 2002 and laid the foundations for improving the legal situation of sex workers. Sex workers now have a legal claim for any wages agreed on with clients: wages can no longer be denied to you based on prostitution being an “immoral practice”, as had legally been the case in the past. You can also enter an employment contract with a brothel operator and gain access to the social security system (healthcare, nursing/elderly care, unemployment and pension benefits). Furthermore, brothel operators can now provide decent places to work without being subjected to criminal penalties: in the past, this would have been regarded as “promoting prostitution” or “pimping” and was illegal. However, there are still special laws which apply for sex workers, such as the “Prostituiertenschutzgesetz” (“Prostitutes Protection Act”) or the “Sperrgebietsverordnung” (“Ordinance on Restricted Areas”). As such, there is still a long way to go before we can speak of sex workers as being on an equal footing with other professions.
Federal laws, such as the Prostitution Act, the Prostitutes Protection Act, and the various tax laws all apply equally in all federal states. Parallel to those federal laws, there can be other legal regulations and different rules in place, which may apply on a state, city and municipality level. Unfortunately, there are also cases in which authorities act without any legal basis. Thus, you always have to keep up to date on what the current rules/regulations are in your local area.
Prostitutes Protection Act
The “Act on the Regulation of the Prostitution Trade and the Protection of Persons Working in Prostitution”, known as the “Prostituiertenschutzgesetz” (“ProstSchG”) for short, came into force on 1 July 2017. The ProstSchG includes regulations on:
- The prostitution industry: this includes all places where prostitution is carried out, e.g. flats/other premises used as brothels, clubs, bars, established brothels, but also prostitution vehicles (Love-Mobile), prostitution events and services for mediating prostitution.
- Clients: it is the client’s duty to ensure that a condom is used during sexual intercourse; if they do not do so, they may be fined up to 50,000 euros.
- Sex workers: this means all persons offering sexual services in exchange for a form of payment (it does not have to be a commercial operation).
Regardless of where you are working, you should know the following facts about the Prostitutes Protection Act:
You must attend a state mandated health counselling before registering with your local authority as a sex worker. You will have to attend it on a regular basis: once every year, if you are over 21, or every 6 months, if you are under 21 years old. Important to note: this consultation will not involve any examination! Within the counselling, discussions of how to protect yourself against diseases, contraception, pregnancy, and the risks of alcohol and drug use will be the focus. If you speak only a little German, you can bring another person with you to translate, but only if you and the authorities both agree.
You will receive a certificate from this consultation and, if you request it, you can get an additional certificate with your alias/working name.
Once you have your certificate from the health counselling, you must register as a sex worker at the local authority within three months. You have to register at the city or region where you want to do most of your work – you can choose the place that suits you best.
In some places, the authorities will charge a fee (for example, 35 euros per certificate), some will not. Find out online or from colleagues, which authority you need to register with. To register, you will also need your ID card or another identification document, as well as two passport-size photos. Non-EU migrants must also present a work permit. If you want to work in more than one city or state, you will need to indicate this when registering.
Registering includes another counselling appointment. You will receive information about your rights and duties as a sex worker (including tax obligations), about health care and social security, about services providing advice relating to health and/or social issues, and about how to access help in emergency situations. The authorities will make a record of your first and last name, your date and place of birth, your nationality, and a postal address or address where they can reach you. They will also pass your information on to the tax office. You will then receive a registration certificate. On request, you can also get a certificate under your alias/trade name (an “alias certificate” – “Alias-Bescheinigung”). If you are above 21 years of age, you must have your certificate renewed every two years; if you are under 21, you must renew every year.
The REGISTRATION CERTIFICATE includes your passport photo, your first and last names (or working name/alias), your date and place of birth, your nationality, expiry date, and the issuing authority. The certificate will indicate all the federal states or cities/towns where you want to work in the future. You can also request all 16 federal states to be included. Otherwise, you will have to return to the same issuing authority at a later date, if you want to work in another city.
You WILL NOT receive your registration certificate if:
- you have not provided all the required identification documents
- you are under 18 years of age
- you are pregnant and are due to give birth in the next six weeks
- you are under the age of 21 and other people are pushing you into prostitution, or to continue working in prostitution
- there is evidence that you have been forced and/or that other people are coercing you into prostitution or to continue working in prostitution.
You must always have the health counselling certificate and your registration certificate (or alias certificate) with you, when you are at work.
Brothel operators are not permitted to allow you to work for them, if you do not have these two certificates: they can be punished if they do let you work despite not having these documents. They make a record of your data, and must provide it to the authorities if required. Brothel operators are also required to provide you with receipts concerning room rentals, room fees, any commission and pro-rata earnings, and must show these to the authorities upon request. If you work, but do not have the two certificates, you may initially receive a warning, but in the event of a repeated offence you can be fined up to 1,000 euros.
You must notify the authorities you have registered with within 14 days of any changes in your details, e.g. a name change or change of address. The law stipulates that any sexual intercourse within sex work has to occur with condoms (you cannot, however, be punished – only the client is liable). Advertising sexual services without a condom is not permitted: this includes any descriptions or abbreviations used to that effect. Gangbang parties and flat rate offers are prohibited. Operators of any businesses where sex work takes place are not allowed to dictate how you provide your service, including who you provide services to, and the scope of the services you provide. It is your right to turn away any client or to refuse specific sexual services. You are also responsible for negotiating the price with the client. If you work in a facility for sexual services (e.g. brothel), you are not allowed to sleep overnight in the room you work in. Additional fees for renting a private room or an apartment, thus need to be considered. The authorities can make exceptions here, but you have no legal entitlement for an exception to be made. You are allowed to work alone in your home, but you are not allowed to have colleagues work with or support you there. If you are no longer working alone, or if you sublet a room of your apartment you work in, your private apartment will count as a business where sex work takes place. If this is the case, you (or your colleague[s]) will have to submit an extensive application for a permit.
As is the case for most sex workers, you will work as a freelancer, whether on the street, in a brothel, in a flat, or in a bar. You will not have an employment contract, and you solely are responsible for your business: You decide if and when you work, what services you offer, on what terms, and whether you will accept a client or not. Just like other freelancers, you are also responsible for everything relating to income and generating profits. (If you work in a brothel, you will still have to follow the “house rules”, of course, e.g. accepting the agreed room rates, costs for drinks, bed linen etc.) Please note that by registering as a sex worker, your registration will automatically be submitted to the tax office in accordance with the Prostitutes Protection Act.
IMPORTANT INFORMATION FOR MIGRANTS: As a citizen of a country of the European Union (EU), you have the same rights and obligations as German sex workers. If you come from a non-EU (third) country and do not have the proper work permit (you have travelled to Germany as a tourist, for example), you are not allowed to engage in sex work in Germany. However, even if you do work without permit, you still have certain rights e.g. to health-care or education. Furthermore – and this is a very important point – you still have the right to be protected from exploitation and to be given fair working conditions. You can get advice and support from counselling centres for sex workers or migrants.
As an independent sex worker, you must register with the tax office. In order to do so, you (or your tax advisor) must complete the “German Tax Registration Form for Starting a Commercial, Self-Employed (Freelance) or Agricultural/Forestry Activity Business” (“Fragebogen zur steuerlichen Erfassung zur Aufnahme einer gewerblichen, selbständigen (freiberuflichen) oder land- und forstwirtschaftlichen Tätigkeit”). You will then be assigned a tax number and are required to file a tax declaration once per year. This tax declaration is based on your total income and commercial expenses (e.g. rent, condoms, dildos, advertising costs, mobile phone). You will need to be able to provide receipts or invoices as evidence for expenses. In all cases, you have to pay income tax, and will have to pay VAT once you exceed a certain yearly earning threshold. The tax office can decide that you will have to pay preliminary tax payments every three months. If you do not file a tax declaration, then the tax office can also estimate the amount of taxes they assume you must pay. These claims can extend retroactively to the last 10 years.
In some cities, the tax authorities offer an option to pay a flat-rate tax following the “Düsseldorfer Model”. The tax rate ranges from € 5 to € 30 per day, depending on the city. The amount has to be paid to the operator of the business where sex work is taking place every day (make sure you ask for a receipt!) and is then forwarded on to the tax office. The flat tax is a “preliminary tax”, which means you still have to file your tax declaration. Either you will get part of your flat rate tax back, or you will have to pay some additional amount still.
This tax, sometimes called a “sex tax”, has been put in place in several cities and municipalities. It has to be paid either by the sex workers themselves (for each day they provide sexual services) or by brothel operators.
If you receive Arbeitslosengeld I or II (unemployment benefit I or II), you must report your income from sex work to your Arbeitsagentur (employment agency) or Jobcenter. This income will then be deducted from your state benefits.
Since January 2009, all persons having their residence in Germany are obliged to have health insurance.
As a freelancer, you can choose between:
Voluntary insurance with a public health insurance company (e.g. AOK, Barmer, etc.). The monthly fees depend on your income (you must provide your last income tax statement) and some of your family members/dependents (e.g. children) are automatically insured under your policy.
Private health insurance. The fees depend on the services you want covered by the policy (e.g. single room in hospital). You have to pay for any healthcare expenses in advance and ask the insurance company to refund you afterwards.
IF YOU HAVE NEVER BEEN COVERED BY HEALTH INSURANCE IN GERMANY, it is best to get advice from a sex workers’ counselling centre (see Information, advice, and support for addresses). These are places where you can talk openly about your work and life situation, and will receive the right information and support.
BE CAREFUL with “bargains” and cheap offers from private health insurance companies: Migrants without health insurance are particularly targeted, and whilst a lot is being promised at the beginning, benefits are subsequently not covered!
A side effect of your job may be that you will enter into various contracts, whether it’s renting a room in a brothel, or an apartment, for advertising in newspapers or on web portals, or for mobile phones and internet access. Before signing anything, compare prices and services available. Carefully read through and check each contract. Also, save all the receipts and invoices, because these business expenses are tax deductible.
With your own website, you can advertise and present yourself exactly in the way you want. You have to make sure you follow youth protection regulations when it comes to photos and texts online. On the ‘Impressum’ page, you have to clearly include your basic personal information, including your tax number.
Most cities have Sperrgebietsverordnungen (Ordinance on Restricted Areas), and compliance with the regulations is enforced by the Ordnungsamt, Gewerbeamt (Public Order Office, Trade Office) or the police. They can specify, for example, on which roads and squares it is not allowed to work, either entirely or at certain times of day. If you do not comply with the rules, you may be fined.
Brothels that do not have an official permit can easily be closed down (e.g. by the Bauamt (Building Authority)), even if they have been operating for a long time and offer decent working conditions from your point of view. Closure can be justified on the basis of construction, trade or even criminal law, but is often also due to the fact that the authorities have changed their stance towards sex work, or local residents have complained. Either way, when your “favourite sex club” or a great by-the-hour apartment is closed down, just remember that despite it impacting you, it has nothing to do with you personally.
In order to strengthen the relationship of trust between the police and the sex industry, brothel businesses are generally visited by two or three police officers on a regular basis. You can talk to them and ask them any questions you have. Be aware, though: Under the new Prostituiertenschutzgesetz, the police have the right to enter all premises of businesses where sex work takes place at any time to carry out controls. This also applies to your private home, if that is where you offer sexual services. You must present your identity card or passport to the police on request, as well as the two certificates: from the health appointment and your registration with the local authority.
On occasion, the police may carry out inspections, or even raids, together with the Immigration Authority, the Customs Office, the Tax Office, or other authorities. In such cases, you have the right to ask the officers for their work ID and the reason for the inspection / raid. You solely and exclusively are obliged to answer questions about your full name, date of birth, and address (i.e. any information that appears on your ID card or passport). For any other questions, e.g. about what you earn or who your friends are, there is no legal obligation for you to answer.
After you have registered as a sex worker, you will be registered with the local authority. The local authority is allowed to share your information with other authorities upon request. The authorities ought to take great care here, as this data is personal and highly sensitive. All personal data has to be deleted three months after the expiry date of the registration certificate. Keep an eye on this, and request deletion of your data yourself if necessary! You can make a request at the relevant data protection authority to check whether your data has actually been deleted.
The “Good Business. Legal ABCs of Prostitution” brochure of the Federal Association of Sexual Services e.V. (in its original German title: “Gute Geschäfte. Rechtliches ABC der Prostitution”; Hrsg.: Bundesverband Sexuelle Dienstleistungen e.V.) provides information on the most important legal regulations in the sex work industry. It is available free-of-charge in German, Bulgarian, Hungarian, Romanian, Spanish, English and Thai. They are available to download as PDFs from www.bsd-ev.info/publikationen/index.php .
You can also take part in a profiS – workshop and acquire know-how on the topic of “sex work and law” directly at work.
For more information on the Prostitutes Protection Act (Prostituiertenschutzgesetz), see for example:
