The Nuances of Federalism

In the last working period (2021-2023) of the Human Trafficking Task Force, a paper on the regulation of prostitution in Austria was published, among other things. This at once highlights the difficulties arising from the lack of uniform legislation within Austria: “However, a harmonisation of the legal situation and enforcement practice through a strengthening of structured cooperation among the federal states as well as between the federal government and the federal states is recommended as a matter of priority.”

Since the 1970s, so-called sex work has been decriminalised in Austria and legally regulated at both federal and state levels. At the federal level, social and tax aspects are uniformly defined. However, the details are individually regulated by the federal states. And here is where Austrian federalism can once again be questioned: Some states have enacted their own laws on sex work, while in others, the provisions are included in police laws and vary depending on the state. This means that different definitions and provisions prevail depending on the state. The Working Group on Prostitution (AG Prostitution) was established in 2009 to make recommendations for measures in the field of prostitution. Their suggestions are not binding but are at times taken into account by lawmakers. The pandemic has exposed weaknesses in the regulatory system, prompting a discussion on new models for regulating sex work in Austria. Amnesty International advocates for the decriminalisation of sex work and the inclusion of sex workers in political decision-making processes, while the EU supports the Nordic model, which aims to combat exploitation and human trafficking through exit programs. We also support such an approach and continuously offer courses to show affected individuals new opportunities, including learning a new trade such as sewing. At Hope for the Future, we also strive to show people new perspectives – click here for our courses.

The individual legal regulations are identified as a challenge, and therefore, the transfer of regulatory authority from the states to the federal government is recommended. However, it is emphasised that regulation should be done at the state level, without the possibility of municipal regulations. Often there is a lack of specific expertise at the municipal level, leading to further legal fragmentation. An example of this is the Sexual Services Act in Upper Austria, which authorises municipalities to make time and location restrictions but reserves further regulations on the operation of brothels to the state government. For instance, the establishment, equipment, and cleanliness of the premises, which in turn leads to a lack of transparency. A detailed overview is provided in this blog post “The Prostitution Laws of the Federal States in Comparison.”

The responsibilities of the states in the field of town planning and zoning directly influence the approval of brothel operations. However, restrictive regulation at the local level, coupled with unclear legal definitions and strict enforcement practices, can lead to the market seeking illegal avenues to remain active. For example, in regions where brothels are not allowed, table-dance clubs are often applied for, which provide sexual services without sufficient evidence. This illustrates how fragmented legislation also contributes to those working in this industry being at risk of not being adequately protected.

Experiences from cities like Vienna, Graz, and Linz have shown that legally operated brothels are generally inconspicuous and strive not to cause problems. In these cities, brothel operations even work well in residential areas without disturbing residents.

Ideologies and moral worldviews significantly define perspectives on prostitution. “Religious values, gender-specific notions of sexuality, as well as gender-specific and global divisions of labor influence the political, legal, and social handling of prostitution. The different approaches range between two extreme positions: prostitution as (sexualised) violence against women versus prostitution as work like any other.”

Sexual acts with physical contact provided on a commercial basis (repeatedly and for payment) are summarised under the terms prostitution/sexual services/sex work.

However, it should be noted that these terms have different effects. The term “prostitution” conveys images that encompass the entire spectrum, from criminally relevant (sexual) exploitation under coercion (forced prostitution) to self-determined prostitution. The terms “sexual services/sex work,” on the other hand, better convey the intended aim of regulation and thus professionalisation of sex work (regulations for the provision of commercial sexual acts are subject to the scope of Directive 2006/123/EC on services) and are therefore preferred. The same applies to the terms “prostitute” and “sex worker,” the report further states.

So-called abolitionist movements aim to prohibit prostitution, as it is viewed as an expression of existing social and economic inequalities, especially between women and men. Prostitution is considered paid rape, which commodifies women and is equated with human trafficking. Contrary to abolitionist efforts are positions that demand the decriminalisation and regulation of voluntary provision of sexual services and aim to achieve equal treatment with other professions. Sex work enables independent livelihoods and must therefore be decriminalised to deprive poor working conditions, exploitation, and human trafficking of fertile ground. The AG Prostitution comprises around 30 experts, mainly from police authorities and specialised counselling centres, as well as relevant departments of federal and state administrations. A large proportion of the members have direct contact with the target group. Guest participants such as sex workers are included to ensure that specific issues can be considered in a comprehensive manner. Interestingly, sexual services that do not involve direct physical contact, such as telephone sex, cybersex, and pornography, have so far been overlooked by the AG Prostitution. These are subject to completely different conditions and should therefore be treated separately.

The question that can now be asked is why a uniform legal basis has not yet been established. Legal differences and interpretations also lead to more uncertainty in this area. The lack of clear definitions results in individuals in these fields of activity suffering from a lack of protective measures and makes exploitation even easier. The fact that even the naming of “venues” varies from state to state creates additional loopholes.

Translated by Anna Mae Smith

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