Friedrich-Wilhelm Schulte
Observations on the Twenty-Sixth Criminal Justice Amendment - Trafficking in Human Beings (26.StrÄndG) of 14 July 1992 - German Civil Code I p. 125 - entry into force 22 July 1992

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1. The problem

Experience indicates that criminal offenders operate internationally to recruit women and girls - particularly from South-East Asia, Africa and South America - so that they can use them as prostitutes in Germany. The offenders are generally brothel owners and pimps and are often members of international crime syndicates. They take advantage of the social and economic situation in the home countries of the women to delude them into thinking that they can improve their own social and economic condition by moving to Germany. Most of the women enter Germany as tourists, after which they are often forced into an illegal situation and then end up as prostitutes. They are completely isolated and live under inhumane conditions.

In addition, many cases have occurred in recent years where foreign women were recruited with the promise that a husband will be found for them. Those women, who had no return ticket and almost no cash, were provided to possible candidates "on trial" until they decided to work as prostitutes or in peep-shows.

Past experience from the prosecution of criminal offences involving sexual exploitation, particularly of foreign women, indicates that before entry into force of the Twenty-Sixth Criminal Justice Amendment Act, existing criminal law (particularly the previous version of Article 180 - Promotion of Prostitution and Article 181 of the Penal Code - Trafficking in Human Beings) did not always cover every type of behaviour that appears to be punishable. Moreover, inherent difficulties in obtaining evidence in the social environment being investigated meant that individual aspects of applicable elements of an offence, particularly trafficking in human beings, could not be proven, although there were many indications of such a criminal offence. The result was that many offenders went free or could be punished only for far less severe crimes.

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2. Legislation based on the Twenty-Sixth Criminal Justice Amendment Act

The sharp increase in exploitation contemptuous of human dignity and new manifestations of it led to replacement of the former Article 180 a (Promotion of Prostitution) and Article 181 of the Penal Code (Trafficking in Human Beings) with new criminal provisions on trafficking in human beings in the Twenty--Sixth Criminal Justice Amendment Act. The Act entered into force on 22 July 1992.

The aim of the Act is to improve the provisions of criminal law to protect foreign girls and women from sexual exploitation, specifically the risks of forced prostitution, trafficking in human beings and so-called "marriage tourism". The following measures were intended to fulfil that goal:

- Article 180 b of the Penal Code (Trafficking in Human Beings) created new elements of an offence and simultaneously included and expanded the former Article 180 a, paras. 3 to 5 of the Penal Code. The previous provision against trafficking in human beings (Article 181) is now described as "aggravated trafficking in human beings".

- Instead of the recruitment for gain in Article 180 a, para. 3 of the Penal Code, it will now be sufficient for the offender to have exerted an influence on the victim for his own financial advantage and to have provided the victim for prostitution in knowledge of a difficult situation. Replacing the element of the offence "for gain" with the description "for his own financial advantage" will now make one-time provision in return for money or similar reward a punishable offence (Article 180 b, para. 1, clause 1, Penal Code).

- Women who are taken advantage of due to their specific helplessness as foreigners will now enjoy the same protection against sexual exploitation as young people under the age of 21 years (Article 180 b, para. 2, Penal Code).

- Moreover, the protection of women who at the time of the offence were already engaged in prostitution and who were provided so they will continue as such has been improved both in the new Article 180 b and in the reworded Article 181 of the Penal Code. Henceforth Article 181, para 1, no. 3, Penal Code will also include recruitment for gain of foreign girls and women who at the time of the offence were already employed as prostitutes in their own countries, and will be punishable by imprisonment for between one and ten years.

- Foreign women, in particular, will now also be better protected against sexual exploitation outside of prostitution, particularly "marriage tourism" and "commercialization" in peep-shows and the like (Article 180 b, para. 1, clause 2, Article 181, para. 1, no. 2, Penal Code).

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3. Additional measures subsequent to the Twenty-Sixth Criminal Justice Amendment Act

The Prevention of Trafficking in Illegal Drugs and Other Manifestations of Organized Crime Act (OrgKG) of 15 July 1992, Code of Civil Procedure I, p. 1302) entered into force on 22 September 1992.

The Act complements the Twenty-Sixth Criminal Justice Amendment Act in two important areas:

- First, the measures taken in the Organized Crime Act to improve witness protection (Article 68 of the Penal Code) will also benefit women affected by trafficking in human beings, who could be important witnesses at trial.

- Second, the new legal institutions of seizure of assets and the expansion of forfeiture are also applicable under certain conditions (activities for gain or gang activities) to cases of aggravated trafficking in human beings according to Article 181 of the Penal Code (Article 181 c Penal Code). That significantly improves the remaining ways in which to seize illegal profits from trafficking in human beings.

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4. History of the act

The Twenty-Sixth Criminal Justice Amendment Act dates back to an initiative by the German state of North Rhine-Westphalia in 1990 (Bundesrat [Upper House] publication 567/90). The Bundesrat voted on 8 November 1990 to submit the amended bill to the Bundestag [Federal Parliament] (Bundestag publication 12/2046).

After some amendments and additions, the Federal Government approved the bill in its opinion (Bundestag publication 12/2046, p.7f.). During the first debate on 20 February 1992 (plenary record 12/79), it became clear that there was fundamental agreement on the criminal measures but that other, non-criminal measures to improve the situation of the women affected would need further examination.

On 11 March 1992 the Legal Affairs Committee of the Bundestag asked the Federal Government to propose a version that could implement the amendments and additions suggested in its opinion. That proposed version was approved in full detail during a rapporteur's discussion on 30 April 1992. The version recommended by the Legal Affairs Committee (Bundestag publication 12/2589) and the bill passed by the Bundestag on 20 May 1992 are identical to the version proposed by the Federal Government.

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5. Future of the act

The Twenty-Sixth Criminal Justice Amendment Act contains the necessary criminal measures to improve the protection specifically of foreign girls and women against sexual exploitation. It should be noted that criminal law is an important, but by no means the only, aspect of a comprehensive set of measures to combat trafficking in human beings, forced prostitution and marriage tourism. It is not a panacea to cure all problems involved in this multi-faceted area. According to the German Constitutional Court, criminal law is also "the ultima ratio in the set of legislative instruments" and must therefore be limited to punishable violations against sexual self-determination.

Therefore, the German Federal Government welcomes any other measures that will improve the protection of foreign girls and women from sexual exploitation. It believes that the new criminal provisions will be effective only it the overall personal, economic and social position of women can be improved by related measures in other areas.

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

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