Problems Encountered in the Prevention of Trafficking in Human Beings:
The Police Viewpoint

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Improvements and problems encountered during police enquiries into cases of trafficking in human beings

From the police viewpoint, the amendment to Article 181 of the Penal Code has closed significant loopholes and has eliminated difficulties in obtaining evidence when investigating cases in which foreign women have been forced into prostitution in the Federal Republic of Germany.

1. Matrimonial agencies are now subject to criminal prosecution if, knowing that a woman is in a position of helplessness because she is a foreigner, they exert an influence on her so that she must engage in sexual acts or must allow them to be done to her.

2. It is no longer necessary to prove that advantage has been taken of the helplessness of a woman. It is now sufficient when introducing someone into prostitution to have known of her predicament and, in the case of other sexual acts, to have known of the helplessness specific to foreigners. It is much easier to prove those elements of an offence.

3. Criminal prosecution for a person who recruits women for gain is the same as for a person who provides women for prostitution using cunning and deceit.

* Notes from an interview with Wilhelm Schwerdtfeger in August 1993 by Pia Bungarten

4. The amendment has also clarified the legal position of women who were already prostitutes at the time they were recruited. In the past, the excuse was often given that trafficking in human beings cannot exist in the cases of prostitutes. It was thought in the Federal Republic of Germany that anyone who was already a prostitute in her own country, was not really a victim and, moreover, could not be considered a reliable witness. Charges often resulted in acquittal. The amendment now states that anyone who provides a woman for the "initiation into or continuation of prostitution" is subject to criminal prosecution.

It is not yet possible to evaluate the effects of the amendment of Article 181. Investigations into such cases require a great deal of time and money. There have not yet been any convictions to which the new version of the Act would have applied.

From the police viewpoint there are two main problems:

1. The problem of the right of residence for the women concerned, and

2. Insufficient regulation of telephone tapping.

The most serious problem is the lack of the right of residence for women affected by trafficking in human beings. At present a woman's decision to appeal to the police for help amounts to turning herself in, because women generally do not have residence permits for the Federal Republic of Germany and are therefore in violation of the Aliens Act. A woman who contacts the police must assume that she will be expelled or deported.

Therefore, improving the legal position of victims is of primary importance. The women should not become mere tools of the legal system, of interest only as witnesses in the criminal procedure. They should receive residence permits independent of the criminal proceedings and be allowed to work in Germany, at least temporarily. Limited toleration of that type would give the estimated 15,000 to 20,000 women who are currently living illegally in Germany a real chance to break out of prostitution and would help to alleviate their financial plight. It would also help to counter problems linked to illegality, such as lack of medical care, and would to some degree relieve a life of fear and deprivation of rights.

Temporary toleration would currently be within the margin of discretion of the immigration officials. It is actually in the interest of the Federal Republic of Germany not to victimize these victims a second time by immediately deporting them. Objections that a provision of this type could be misused are not a sufficient reason for failing to try a new procedure. The effects of a new approach should be analyzed, and any resulting problems should be dealt with, but the door should not be definitively closed against the possibility of limited residency.

Another problem is encountered during investigations. Telephone tapping plays an important role in police enquiries, since the perpetrators operate in a subculture and always act conspiratorially, the female witnesses are afraid to talk, and the customers would obviously not benefit from the investigation. Telephone tapping is regulated by Article 100 A of the Code of Civil Procedure, which currently allows it in this context only in the investigation of trafficking in human beings for gain or related to deceit. It is not allowed in cases where a woman was forced into prostitution by violence (Article 181 para. 2 Penal Code). However, since the degree of illegality of all three variations in the offence is obviously equated, it can only have been a oversight that a corresponding addition was not made to Article 100 A of the Code of Criminal Procedure when amending Article 181 of the Penal Code.

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What about the police units responsible for investigating offences related to trafficking in human beings, and their training?

There are no special units in charge of these problems. The job is taken care of by the Criminal Commissioner's Offices, more specifically the officers in charge of vice crimes. Their training includes learning how to handle problems of violence against women. There are also courses on problems such as those related to rape and indecent assault.

The Organized Crime Unit also gets involved if there are indications that a case is not an isolated incident and involves organized recruitment for gain.

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What would improve the criminal prosecution of offenders abroad?

It would be extremely helpful to make direct cooperation between police officials possible and to simplify procedures, which are currently extremely complex. Evidence is still not allowed before the court unless it has been obtained through the judicial system, i.e. the competent public prosecutor's office sends an enquiry through the federal public prosecutor's office, which passes it on to the Federal Ministry of Justice, which forwards it to the Foreign Office, which contacts the foreign office in the country concerned. The enquiry then follows a similarly tortuous path in that country until it finally lands on the desk of the official responsible for answering it. Given the increasing degree of international mobility and the related international criminality, international cooperation among police agencies must be simplified.

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What problems occur during police cooperation with offices for public law and order, health and aliens registration?

There is a hitch with other officials' understanding of what's going on, for example, the officials at the aliens registration authorities. They should take a close look at what the applications say. For example, if residence permits are continually being requested for women folk dancers, they should ask themselves whether there's a real need, whether a folk dancing event is being planned and whether the place where the application states the event is to be held actually exists. The administrative districts of the "Länder" should suggest improvements in the flow of information both within and between agencies.

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Are there differences between prostitution of foreign and German women?

The foreign women cannot be viewed as a single group, because there are significant cultural differences among women from Asia, Eastern Europe and Africa. One thing they do have in common is that they are unfamiliar with German customs and language and with the legal system here. Their lack of knowledge and their uncertainty, and particularly their poverty, make them helpless in a way that German women are not. That may destine foreign women to completely different sexual acts from German women. Moreover, they often transfer to German society their unfortunate experiences with corrupt officials in their own countries and with pimps and do not dare to trust officials in this country.

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What about cooperation between the police and women's organizations?

There are reservations on both sides. Many police officers are mistrustful of church and women's rights organisations, particularly if they are considered to be left-wing. By the same token, women's organizations often have strong prejudices against the police. That can only be changed by concentrating on the people concerned and by slowly coming closer together. People must become familiar with the constraints under which various institutions and organizations operate and be willing to view situations from another point of view.

There are problems for which the police are unable to provide help, for example, the mental and social condition of a victim. For example, if the police found work for a woman and provided her with financial support, they could be accused of manipulating a witness. Women's organizations are in a far better position to come to grips with such problems. Cooperation will have to be expanded one step at a time; it is not something that can be ordained from above. It is helpful to report on the positive results of cooperation so as to break down prejudices and mistrust.

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What about criminal prosecution of men who use child prostitutes in other countries?

According to the law that entered into force on 1 September 1993, German men who commit indecent assault on children in other countries are now subject to criminal prosecution. Such prosecution was previously possible only if the children were also German. Therefore, the basis for investigation has been created, but it will be extremely difficult to obtain evidence. Third World countries often do not have sufficiently advanced systems based on the rule of law, and there is a great deal of corruption. It is quite unlikely that information that will lead to investigation will reach Germany from those countries. It would doubtless be more effective to increase criminal prosecutions where the offences occur, for example in Thailand or the Philippines.

© Friedrich Ebert Stiftung | technical support | net edition fes-bibliothek | 12.1. 1998

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