EVALUATION OF PROSTITUTION IN AUSTRIA- A HUMAN RIGHTS CHALLENGE

ABSTRACT

Legality of prostitution around the world has not been a topic that often appears in the public
sphere because of the stigma attached to trade in society. Prostitution is viewed as an indecent
act which a rule biding member of society would not indulge in. The author has attempted to
analyse prostitution in Austria from a legal as well as a human rights perspective through a
review of doctrinal and empirical evidence, and a comparison with similar laws across Europe
and the world to find out the impact of societal morality on prostitution laws.

Key words- Prostitution, Stigma, Laws, Morality, Rights

1
 TABLE OF CONTENTS
INTRODUCTION-..........................................................................................................................3

HISTORY OF PROSTITUTION IN AUSTRIA-...........................................................................4

LEGISLATIONS GOVERNING PROSTITUTION IN AUSTRIA-..............................................4

IMPACT OF COVID-19 ON AUSTRIAN PROSTITUTION-......................................................6

SEX-TRAFFICKING, AUSTRIAN LAW, AND PROSTITUTION-...........................................6

HUMAN RIGHTS VIOLATION OF AUSTRIAN PROSTITUTES-............................................9

PROSTITUTION LAWS ACROSS THE WORLD AND COMPARISON WITH AUSTRIAN

LAWS-...........................................................................................................................................13

CONCLUSION-............................................................................................................................16

2
INTRODUCTION-

Prostitution’s the one profession in the world that has always managed to stir up debates with
regards to its ethical and moral viability. Nobody would assume that a profession that employs
about 42 million people across the world1 and generates nearly 100 billion dollars in revenue
every year would be the subject of one of the world’s biggest controversies. 2 The subject of
legality of prostitution usually attracts people from two different schools of thought, with
divisions in attitudes and opinions as regards to its toleration by society. Some 3 classify
prostitution as a labour which needs to be legalized, regardless if it being regulated or not, and
others see it as an abhorrent representation of human culture that includes an abuse of the natural
body and seek its criminalization and that of its associated activities, but the arguments towards
legalization make a lot more sense as legalizing the trade can help weed out organized sex-
trafficking, and make sex-work more safer than it is as of the current moment.

Merriam-Webster defines prostitution as the act or practice of engaging in promiscuous sexual

relations especially for money, but of course, the definition of the profession would vary from
one country to another, depending upon its legal status. Netherlands was the first country to
legalized and regulate prostitution and many states have followed suit, with the trade now being
legal in 53 countries, and partially legal in 12. 4But despite what some people think, legalization
of prostitution in different countries has not been to attach some form of respectability to the
trade but to counter other social issues that arise because of its criminalization, which in fact is

1
Gus Lubin, There are 42 Million People in the World, And Here’s Where They Live, BUSINESS INSIDER (Jan.
18 2012, 12:25 AM), https://www.businessinsider.com/there-are-42-million-prostitutes-in-the-world-and-heres-
where-they-live-2012-1?IR=T.
2
Prostitution Revenue by Country, HAVOCSCOPE (Sept. 15, 2021, 8:03 PM),
https://havocscope.com/prostitution/.
3
Amnesty International publishes policy and research on protection of sex workers’ rights, AMNESTY
INTERNATIONAL (May 26, 2016, 12:00 AM), https://www.amnesty.org/en/latest/news/2016/05/amnesty-
international-publishes-policy-and-research-on-protection-of-sex-workers-rights/; Umberto Bacchi, Legalizing
prostitution lowers violence and disease, report says, REUTERS (Dec. 12, 2018, 12:37 AM),
https://www.reuters.com/article/us-global-women-prostitution-idUSKBN1OA28N.
4
Countries where population is legal 2021, WORLD POPULATION REVIEW (Sept. 17, 2021, 9:07 AM),
https://worldpopulationreview.com/country-rankings/countries-where-prostitution-is-legal.

3
quite contrary to the worldview towards prostitution over the course of history, with the trade
being quite popular and even sacred5 in some parts of the world.

HISTORY OF PROSTITUTION IN AUSTRIA-

Prostitution in Austria can be traced back to the middle ages, when, like today, it was treated like
a necessary evil by the state. There came about an interesting relationship between the
establishment and the sex-workers, with both the parties having implied agreements as regards to
their lifestyles and civil conduct. Since then, certain efforts such as those by Maria Theresa of
Austria were made to reduce prostitution in the country.6 But these efforts did not gain much
momentum and it was soon felt that there was a need to embrace the trade rather than restrict it. 7
This led to a monumental change in the policy of the country and significant efforts were made
to incorporate and regulate prostitution. The evolution of practices such as the requirement for
health certificates, and registration of prostitutes have been made over the years to regulate the
trade as efficiently as possible. In 1989, s. 210 of the penal code (Strafgesetzbuch) 8was also
repealed to decriminalize male prostitution.9

LEGISLATIONS GOVERNING PROSTITUTION IN AUSTRIA-

There is no specific law dealing with the legality of prostitution (commercial sex-work) in
Austria, but the issue is dealt with in a number of different legislations- Administrative Penal
Act, Alien Police Law, AIDS Law, Immigration Police Law, Income Tax Law, Civil Code,
National Insurance Act, Penal Code, or Venereal Diseases Act. The trade is regulated at three
administrative levels: national, provincial, and communal. Sex workers have to comply with
5
JAMES GEORGE FRAZER, THE GOLDEN BOUGH (1 ed. Palgrave Macmillan 1922).
6
Anita Winkler, Maria Theresa and the moral crusade, THE WORLD OF HABSBURGS (Sept. 21, 2021, 6:45
PM), https://www.habsburger.net/en/chapter/maria-theresia-and-moral-crusade.
7
Prostitution- between rejection, marginalization and acceptance, SOCIALIST YOUTH AUSTRIA (Jul. 21, 2011,
10:16 PM), https://web.archive.org/web/20110721232836/http://www.sjoe.at/content/frauen/themen/koerper/
article/618.html
8
Criminal Code of the Republic of Austria.
9
Vienna Anti-Discrimination Agency: The Legal Situation in Austria, GOVERNMENT OF VIENNA (Sept. 29,
2007, 10:28 PM), https://web.archive.org/web/20070929130754/https://www.wien.gv.at/queerwien/recht.htm.

4
these regulations and are under strict police control, but these laws don’t efficiently protect their
rights. For e.g. they have to be self-employed and pay sales and income tax one year in advance,
failing which, ex officio tax assessments are used to calculate their tax liability without taking
into account their economic status. Further, they have to get registered as ‘Prostitutes’ as per the
Health Checks Directive under the Venereal Diseases Act, with either a police situation or the
municipal authority. Their Registration requirements may vary from one province to another, but
generally, these ‘Prostitutes’ have a mandatory obligation to attend weekly inspections for
Sexually transmitted Infections, Quarterly HIV tests (under the AIDS Law) as well as carry a
‘Special Document’ called a ‘Control Card’ that confirms these checks. 10 §. The Sexualler
Missbrauch von Jugendlichen, however does place regulations for protection of workers under
the age of 18 by allowing for persecution of clients who solicit services from them.11

The nine provinces of the country have province-specific regulations with regards the sexual
services. The provinces of Carinthia, Salzburg, Styria, Tyrol, and Upper Austria have regulations
that confine sex work to licensed brothels only, and some of these provinces lay down a number
of restrictions for issuance of these licenses. The provinces of Burgenland, Lower Austria , and
Vienna have specified designated tolerance zones, with any sex work outside of these areas
being strictly prohibited. And, in the province of Vorarlberg, Prostitution is not expressly
prohibited, but it is restricted to licensed brothels, and the Municipalities prevent the issue of
licenses, thus, resulting in circuitous prohibition of any commercial sex work12.

Failure to comply with any of these regulations as well as the provincial regulations is treated as
a misdeameanour penalised under the Administrative Penal Act. The punishment may include
fines up to 20000 Euros, prison sentence, and even deportation for migrant ‘Prostitutes’. Women
may be aslo forced to attend vaginal inspections against their will, 13 and they cannot entertain
their clients in their own private premises.

IMPACT OF COVID-19 ON AUSTRIAN PROSTITUTION-

10
Laws on Prostitution, SOPHIE (Sept. 18, 2014, 11:40 PM), https://archive.vn/0k3mv.
11
Sexualler Missbrauch von Jugendlichen, § 207b.
12
Laws on Prostitution, SOPHIE (Sept. 18, 2014, 11:40 PM), https://archive.vn/0k3mv.
13
Coercive medical interventions are permitted in exceptional circumstances, only. In these cases, certain
international guidelines have to be respected. Committee, General Comment 14/2000 at § 34.

5
The entire world came to a standstill when the covid-19 pandemic halted the lives of people.
With every country introducing guidelines and restrictions to prevent this super-spreading virus
that essentially transmitted through physical contact, to continue a trade like sex-work did seem
impossible for a long period of time. In Austria, clients were forbidden to enter visit prostitution
facilities at the beginning of the pandemic and while sex-work was allowed to continue from 1 st
July, 2020 after issuance of guidelines for clients and prostitutes, the government’s COVID-19
Protection Measures Ordinance issued in November closed all facilities for practice of
prostitution for the month of November.14 The legal restrictions, of course, did affect prostitution
but it was still practiced illegally on a small scale. The restrictions also kick started a migration
of many sex-workers to their home countries that weren’t able to find work in Austria. 15 The
pandemic as a whole has had a big impact on the prostitution industry with clients reluctant to
visit brothels and sex-workers for the fear of getting infected with the Corona virus, which has
led to a decrease in demand leading to lower incomes for the Prostitutes.

SEX-TRAFFICKING, AUSTRIAN LAW, AND PROSTITUTION-

Human trafficking represents everything that is wrong with society. It’s a gross violation of the
civil rights of an individual and is a problem that is faced throughout the world. According to
data provided by the International Labor Organization (ILO), 2.4 million people are victims of
human trafficking.16The premise of human trafficking is one that goes against the very basis on
which a civilized society can be built upon. Selling human beings for a profit, treating them as a
commodity without a soul of their own and making money off of it violates every moral and
human right that an individual should be able to enjoy. As per reports, human trafficking ranks
third in terms of illicit profits with women and children particularly affected by the criminal
practice.17 Because of its geographical location at the centre of Europe, Austria is affected by
human trafficking both as a transit and destination country. According to estimates, the most
14
Prostitution in Austria Prohibited again: Here are the New COVID-19 Rules, VINDOBONA (Nov. 2, 2020, 7:55
AM), https://www.vindobona.org/article/prostitution-in-austria-permitted-again-here-are-the-new-covid-19-rules
15
Regional Updates COVID-19 Migrant Sex Workers and Sex Worker Responses, TAMPEP (Mar. 21, 2020, 12:37
PM), https://tampep.eu/regional-updates-covid-19-migrant-sex-workers-and-sex-worker-responses/.
16
Combatting Human Trafficking, AUSTRIAN EMBASSY WASHINGTON (Sept. 19, 2021, 12:51 PM),
https://www.austria.org/human-trafficking.
17
Combatting Human Trafficking, AUSTRIAN EMBASSY WASHINGTON (Sept. 19, 2021, 12:51 PM),
https://www.austria.org/human-trafficking..

6
frequent phenomena of human trafficking in Austria include human trafficking for sexual
exploitation, slave-like situations of domestic servants and child trafficking. The Austrian
Establishment has tried to counter this problem by setting up the Task Force on combating
Human Trafficking and the first National Action Plan on Combating Human Trafficking was
adopted in March 2007. But the government still has a long way to go to in terms of national
effort and international co-operation to combat trafficking which cannot by itself be treated as a
domestic problem.
Austria is a signatory to all relevant international legal instruments to combat human trafficking
including the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, Supplementing the United Nations Convention Against Transnational
Organized Crime; the Council of Europe Convention on Action against Trafficking in Human
Beings; the UN Convention on the Rights of the Child and the Optional Protocol on the sale of
children, child prostitution and child pornography; and the UN Convention on the Elimination of
All Forms of Discrimination against Women, but the problem needs to be addressed at the root
administrative level, as that’s where the machinery is falling apart. A study of TAMPEP showed
that 78% of people involved in the prostitution industry in Austria are foreigners. 18 While some
of them turn out to be migrants, a large number of them are brought in the country through sex
trafficking rackets. Regarding the European Union, ILO in 2012 states an average of estimated
1.5 persons in forced labor per 1,000 inhabitants. 19 For a population of 8.4 million (of Austria)
this amounts to estimated 12,600 persons. Of them, 22% are sexually exploited, 79% of them
adults, mostly women, which results in estimated 2,200 sexually exploited and/or trafficked
women (7.5% of all women in sex work). These numbers are not normal when you take a look
at the number of lives which were connected to these 2200 women. Each one of them may be
someone’s mother, someone’s daughter, someone’s wife that was unfortunate enough to have
fallen prey to these sex-trafficking groups, and now have to involuntarily lead a life that may
strip them of their self-respect and dignity. The deplorable situation of these victims is made
worse by police corruption. By data of the International Organization for Migration, worldwide

18
Andrew Rattman, Romanian Sex Workers most prevalent in EU, EU OBSERVER (Jan. 26, 2010, 9:30 AM),
https://euobserver.com/social/29340
19
ILO Global Estimate of Forced Labor 2012: Results and Methodology, INTERNATIONAL LABOUR
ORGANISATION (Jun. 1, 2012, 2:37 PM),
https://www.ilo.org/global/topics/forced-labour/publications/WCMS_182004/lang--en/index.htm.

7
8.9% of trafficked or otherwise sexually exploited women report police officers as clients; 20 in
Austria these are estimated 200 women. Thereby, as reported by UNODC,21 police officers may
collude with pimps, who offer them free sex with the victims of exploitation. As the officer
cannot assume the consent of the victim, such behavior is rape.22

The Austrian Legal system is also responsible for the rising number of prostitutes in the country.
People who seek Asylum in Austria are not permitted to accept any regular form of employment,
except begging or prostitution.23 The implementation of this barbaric law is ironical in context of
a developed nation like Austria, and the country has faced a lot of backlash with respect to this
policy, but Austria is not willing to ease access to the labor market.

Further, support for asylum seekers is far from adequate. The author acknowledges that Austria
shelters asylum seekers in refugee camps and provides for their basic needs. However, spending
per refugee is 41% below the Austrian subsistence level. Thereby, Austrian subsistence level is
defined by the minimal monthly per capita social assistance benefits, in 2010 this was 744 €.24
By comparison, Austria provides in average 439 € per month in cash and in kind for each asylum
seeker Moreover, the situation of asylum seeking women is unacceptable, as Austria does not
protect them against violence. For women living in refugee camps, rape by security guards or
inmates is a permanent threat.25 Thus, for asylum seeking women the right to work is a
prerequisite for a life of dignity, as they need income to obtain adequate and safe housing.

This reflects the devastating condition of life these people are thrown into due to the large global
networks of sex-trafficking, affecting Austria the most because of its central geographical
location, and effectively creating a network of migrant sex-workers, who have no other option

20
Maria Laura Di Tommaso; I. Shima; S. Strom; F. Bettio, As bad as it gets: well being depravation of sexually
exploited trafficked women, 25 EUROPEAN JOURNAL OF POLITICAL ECONOMY, 143 (2009).
21
Klara Skrivankova; Gillian Dell; Erik Larson; Maria Adomeit; Silke Albert, The role of Corruption in Trafficking
in Persons, UNITED NATIONS OFFICE ON DRUGS AND CRIME, (2011)
22
Prosecutor v Kunarac, Kovač & Vuković, IT-96-23-T & IT-96-23/1-T.
23
Federal Support to Asylum Seekers Act, § 7.
24
Social Assistance, FEDERAL MINISTRY OF SOCIAL AFFAIRS, AUSTRIA (May 20, 2021, 3:22 PM),
https://www.bmas.de/EN/Social-Affairs/Social-assistance/social-
assistance.html;jsessionid=1212E4A3EA8EF262F123FF6C89DED2E4.delivery1-replication.
25
Dr. Dreya Trentinaglia, Altinisik (2010), Civil Law Aspects of Refuge Care, UNIVERSITY INNSBRUCK,LEGAL
FACT RESEARCH CONFERENCE 1811, (2011).

8
but to engage in the trade in order to survive in the corrupt, and somewhat flawed legal system of
the country.

HUMAN RIGHTS VIOLATION OF AUSTRIAN PROSTITUTES-

Society has a habit of looking down and misinterpreting concepts that go against the general
perception of how things should be. Whenever someone goes against the ‘accepted’ practices,
he/she is treated as an outsider, not inclined to be included and respected as a member of society.
Many people consider prostitution as Society’s Moral Decay, 26 not to be classified as ‘Decent
Work’. As mentioned above, about 3/4th of the total prostitutes in the country are migrants and a
number of them are involuntarily pushed to participate in sex work. The economic conditions of
these men and women are so poor that sex work seems the only viable option for them to
alleviate their poverty. The feminization of poverty also has an effect on women in general, with
13% of women in Austria being below the poverty line. Single mothers have are worse for wear
as they constitute a high risk group for poverty and they are not able to find jobs after parental
leave. In particular, they may not find jobs that allow them to care for their children. 27 Lack of
governmental support coupled with low incomes drive this portion of the population to economic
extremes and into life options where degradation is a natural outcome.

As mentioned above, sex workers have to go through vaginal examinations and these
examinations may also be done against their will, and while these examinations have been
categorised by the European Court of Human Rights as degrading and violation of private life,
and subsequently, the United Nations Committee against Discrimination of Women and United
Nations Committee against torture have also raised concerns about these examinations, with the
Austrian Parliament directing the government to look into reforms regarding the same, but all
these concerns have fell upon deaf ears, as the Austrian Government continues to apply these
26
SOCIAL PROBLEMS 9.4 (University of Minnesota Library Publishing 2010).
27
Schon, The Potential of Family policies to mitigate Single- Parent Poverty risk- A microsimulation Analysis for
Austria, UNIVERSITY OF GRAZ, AUSTRIA (Sept. 17, 2021, 3:43 PM),
https://unipub.uni-graz.at/obvugrhs/content/titleinfo/3106297/full.pdf.

9
‘Systematically torturous medical interventions.28 Further, the penal code also punishes the sex-
workers who themselves don’t have knowledge of their own HIV infection, with ‘criminal’
negligence.29

The Austrian Public Health offices where these health checkups occur are also terribly
understaffed and are plagued with unhygienic equipment, resulting in physical injuries and pain
to those getting their weekly health checkups done.30 Further, women are not even allowed to
choose a doctor to conduct an examination, and in one incident at Klagenfurt, Carinthia, about 40
women were forced to undress in a queue so that the doctor could be able to finish the
examination as quickly as possible.31

Austrian law clearly imposes a lot of liability upon the sex-workers (mostly female sex-workers)
to ensure that their clients are able to safely indulge in sexual intercourse without putting
themselves in danger. The legislations don’t impose obligations upon the male clients, who may
have a chance of infecting the female sex workers. In fact, the chance of catching STIs like
AIDS is higher in case of women than in case of men. 32 The inequality in this context shows the
lack of intent of the Austrian legislature to protect these sex workers, which can again be linked
to the worldwide perspective of prostitution being an ‘indecent’ profession/trade. Austrian
prostitution laws that restrict the freedom of women in sex work to control their own health
discriminate against women in sex work in the enjoyment of Article 1,7 and12 of the Universal
Declaration of Human Rights (UNDHR)33 in two aspects, namely first, as there are no similar
obligations for their male clients and second, as the purpose of these obligations serves only the
interests of the male clients.

28
Yazgül Ilmaz v Turkey of 01.02.2011; Duval v France of 26.05.2011; Y.F. v Turkey of 22.10.2003; Juhnke v
Turkey of 13.05.2008
29
Criminal Code of the Republic of Austria, § 178; Criminal Code of the Republic of Austria, § 179.
30
This is not reprehensible, CHR CHRONICLE ( May. 20, 2010, 4:50 PM),
https://www.genios.de/presse-archiv/artikel/KUR/20100520/-das-ist-nichts-verwerfliches/
0750850820730690820952010%2005200225250065.html.
31
Id.
32
HIV/AIDS in Women, GOVERNMENT OF INDIA (Sept. 17, 2021, 5:02 PM),
https://medlineplus.gov/hivaidsinwomen.html.
33
Article 1 of the UNDHR states that all humans are born equal in rights and dignity, see Universal Declaration of
Human Rights, art. 1; Article 7 states that Every one is equal before the law and is entitled without any
discrimination to equal protection of the law, see Universal Declaration of Human Rights, art. 7; Article 12 states
that No person shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to
attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference
or attacks, see Universal Declaration of Human Rights, art. 12.

10
The fact is that the Austrian government has failed to play a supportive role to women who have
been pushed into this trade. Instead of focusing on reducing the stigmatization of sex-work, the
government has played a positive role in promoting it immoral nature through its policies at
different levels of Administration, throughout the country. The unhygienic public health centres,
the degrading medical tests, exploitation by the police coupled with discrimination against sex-
workers has promoted stigmatization of prostitution as a demeaning line of work that is unethical
and indecent.

In a key Austrian Supreme Court ruling 34 of 1989, the contract to trade sex for money was held
as being contrary to public policy by the court. In this case, the court held that

“Since carelessness is often associated with prostitution, inexperience, instinctiveness

and drunkenness of persons are exploited are contracts of sexual devotion immoral for a fee.
Also speaks for the immorality the disapproving commercialization per se, the impairment of
privacy protection and the danger for family law institutions. But those are also immoral
contracts with which a participation in the profit of commercial exploitation of sexuality is
intended (paid contract for a visit to a relevant sauna). That in these contracts agreed
remuneration cannot be demanded because it is null and void will. On the other hand, a
condition separates one that has already been given payment despite the invalidity of the
contract.

The court’s decision essentially ruled that there was no remedy for sex workers if their client
refused to pay consideration to them for the service provided. Recently, in another ruling 35, the
Supreme Court partially overruled the 1989 case, but until now, there hasn’t been a suit in which
a prostitute has successfully been able to sue for her right to claim consideration from his/her
customer for the provision of sexual services. The Supreme Court has further relieved customers
from any criminal liability if they used any form of deceit in order to receive sexual services
from the sex workers by giving the reasoning that as long as there was not any use of force, and
the customer was just ‘trying to save money’, then he would not be guilty of having any criminal
attempt of committing rape.36 The court has gone on to disparage the trade by labeling

34
3Ob516/89 of 28.06.1989
35
3Ob45/12g of 18.04.2012
36
10Os182/84 of 07.11.1984

11
prostitution as ‘anti-social behaviour’ and a ‘degradation of the performer’s intimate sphere. 37 In
accordance with these judgments, there still exists a legal basis to discriminate against women by
denying them inheritance rights.38

There have been reports of cases being tried against prostitutes for illegal prostitution where
there wasn’t enough proof to even start a trial against them. 39 In fact, the Austrian Authorities
have made efforts to prevent the formation of any kind of union of sex-workers, and of the
unions that already exist, the government turns a deaf ear to their requests as they don’t consider
sex work as a part of the civil society. Women involved in sex-work also face discrimination
when it comes to opening bank accounts, as bank managers have the discretion to close a bank
account if they feel that the conduct of the account holder is immoral/indecent and may also send
out a message to other bank managers regarding his opinion of that person, which can stand as a
big barrier in terms of opening a bank account, which is a necessity for signing any form of
employment contract. Further, sex workers face social exclusion when it comes to receiving any
form of social security, or even maternity benefits. Even if these women fulfill all the conditions
and even pay their social insurance punctually, the level of coverage is unjustifiably low.

The conditions of life of sex workers are made worse by their treatment in society. The indecent
image that pre-exists in the mind of individuals is the major cause of increasing prejudice against
prostitutes. The ironical thing to observe is that even after legalizing prostitution, the Austrian
administration and legal system has put ahead so many obstacles in front of these workers that
voluntary sex- work becomes almost a last resort for a majority of the population. But the lasting
effect of these regulations is on those workers that have been involuntarily pushed into this trade,
either because of poor economic conditions or because of sex-trafficking victimization as these
obstacles further degrade a trade that is meant to be looked down upon by society. The Austrian
government has followed a rather simple policy of discriminating against the voiceless, knowing
that the vulgar image of prostitution would help them to cover up any unethical or immoral
conduct that they show against the people involved in the trade. The exclusion of sex-workers
from society has resulted in absolutely no public pressure on the authorities and has allowed
them to get away with a free pass every single time, even when their actions represent a clear
37
1Ob728/85 of 15.01.1986; 2Ob23/03a of 12.06.2003.
38
General Civil Code, § 768.
39
HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 328 (1 ed. Stanford University Press
1968).

12
violation of basic human rights that guarantee dignity to individuals. The fact that Austria uses
the same regulations for prostitution that were abolished by Germany in 2001 goes to show the
attitude of the administration towards this class of people. 40 The current regulations imposed by
the Austrian administration follow the policy of creating poor conditions for discouraging the
trade, even though it has been legalized. But the only real result of these restrictions can be an
increase in underground prostitution outside the legal circuit which would ultimately become
hard to monitor for these authorities, because even if the discouraging prohibitions demoralize
sex workers from continuing their trade, the workers who don’t have any other alternative would
have to go towards the underground network for basic survival, thus, resulting in a
counterproductive result and a double bind for both the authorities and the sex workers.

PROSTITUTION LAWS ACROSS THE WORLD AND COMPARISON WITH AUSTRIAN

LAWS-

Austria is one of the countries that has legalized prostitution, but the regulations that Austria has
imposed to monitor the trade in the country is vastly different from those of other countries.
Europe is essentially the hub of Legal Prostitution, with Prostitution being essentially illegal in
almost the entire world. The biggest Prostitution Industry in the world exists in Germany, with as
many as 1 million sex workers generating about $ 16.3 Billion (about 1/6 th of the total revenue
generated by Prostitution across the world) a year.41 The respectability of the trade, however
differs vastly across different countries, as while the Netherlands has built a museum 42 for
celebration of the history of sex work in their country and Germany has an annual holiday

40
Germany abolished the regulations that it imposed because of lack of any medical evidence to support the
conditions that it mentioned in the code, see Grover, Report of the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health, HUMAN RIGHTS COUNCIL (Apr. 27,
2010, 2:36 PM), https://www.ohchr.org/Documents/Issues/Water/Contributionsstigma/others/SPhealthII.pdf.
41
Prostitution is legal in countries across Europe, but it’s nothing like what you think, BUSINESS INSIDER (Mar.
13, 2019, 9:28 PM), https://www.businessinsider.in/slideshows/miscellaneous/prostitution-is-legal-in-countries-
across-europe-but-its-nothing-like-what-you-think/slidelist/68397375.cms
42
Suhasini Reddy, Must visit Places in Amsterdam Museum of Prostitution: Red Light Secrets, THE HANS INDIA
(Mar. 8, 2020, 11:25 AM), https://www.thehansindia.com/life-style/travel/must-visit-place-in-amsterdam-museum-
of-prostitution-red-light-secrets-610444.

13
‘Bahnhofsviertelnacht’43 to celebrate their red-light districts, the situation of sex-work in Austria
(as mentioned above) is deplorable.

The legality of Sex work varies across continents. In Africa, prostitution is illegal in most of the
countries,44 but widespread poverty coupled with social breakdown in many countries has created
illegal underground prostitution markets in Sub-Saharan countries45. In the Americas, While the
federal law of Mexico has legalised prostitution in the country (with all 31 states having their
own laws to regulate prostitution),46 prostitution is illegal in most states of the United States of
America (apart from Nevada) with illegal prostitution prevalent across the country 47, and in
Canada, it is illegal to purchase or advertise sexual services, and it is also illegal to live on
material benefits from sex work.48 Countries like Argentina and Brazil have also legalised
prostitution, but the establishment of brothels is prohibited under the federal law of Brazil.49

The Situation of Asia is a rather peculiar one, with there being a big difference between the laws
in existence and the actual practice in the country. One example can be the country of Thailand,
where even though prostitution is illegal, the underground network is really vast, with the
country being a very famous destination for sex tourism. 50
In India, prostitution is legal as long
as it is carried out in the private residence of the sex worker.51 The industry is also legalised in

43
The Big Station Quarter Night on August 16, FRANKFURTER (Aug. 18, 2020, 2:06 PM),
https://www.frankfurter-stadtevents.de/Themen/Stadtteile-Straen/Die-groe-Bahnhofsviertelnacht-am-16-
August_20010442/.
44
Sex workers, HIV and AIDS, AVERT (Oct. 10, 2019, 2:15 PM), https://www.avert.org/professionals/hiv-social-
issues/key-affected-populations/sex-workers.
45
E.N. Ngugi; E. Roth; Theresa Mastin; M.G. Nderitu; Seema Yasmin, Female sex workers in Africa: Epidemology
overview, data gaps, ways forward, 9 SAHARA J. 148, (2021).
46
Sex work law- Countries, GOVERNMENT OF THE UNITED KINGDOM ( Sept. 19, 2021, 2:32 PM),
http://spl.ids.ac.uk/sexworklaw/countries.
47
German Lopez, The case for decriminalizing prostitution, VOX (Aug. 18, 2015, 8:00 AM),
https://www.vox.com/2015/8/18/9166669/why-legalize-prostitution.
48
The Protection of Communities and Exploited Persons Act, 2014.
49
Procon.org, 100 countries and their prostitution policies, BRITTANIA (Apr. 23, 2018, 1:37 AM),
https://prostitution.procon.org/countries-and-their-prostitution-policies/; Sex work law- Countries, GOVERNMENT
OF THE UNITED KINGDOM ( Sept. 19, 2021, 2:32 PM), http://spl.ids.ac.uk/sexworklaw/countries.
50
Cazzie Reyes, History of Prostitution and Sex trafficking in Thailand, END SLAVERY NOW (October 8, 2015,
2:40 PM), https://www.endslaverynow.org/blog/articles/history-of-prostitution-and-sex-trafficking-in-thailand; Kyle
Hulme, The history of Prostitution in Thailand, CULTURE TRIP (Aug. 24, 2017, 2:42 PM),
https://theculturetrip.com/asia/thailand/articles/the-history-of-prostitution-in-thailand/.
51
The Immoral Traffic Prevention Act, 1956.

14
Australia52 and New Zealand53, but coercive prostitution is illegal under the Prostitution Reform
Act, 2003.

While the Netherlands kicked off legalization of prostitution in 2000, the wind of reform is yet to
hit at least half of the world, as currently, only 53 countries have legalised prostitution. But while
some countries have embraced the legalization, some have used it as a tool to reduce prostitution
in the country, by placing harsh restrictions upon the sex workers. Sex workers are treated as a
marginalized community even in developed countries like Austria, Norway, and Papua New
Guinea54 and the restrictions imposed upon them in countries like Mexico, India drastically
makes legalization of the trade a poor tool for furtherance of the governments’ agenda to put an
end to prostitution and sex tourism in their respective countries. But such restrictive legislations
don’t do much to eliminate prostitution but only drive it underground.

Stellar examples of promotion of rights of sex workers are the countries of Switzerland, and
Germany, with these countries making an active effort to stop trafficking of humans for sexual
services,55 which is supposedly the aim for the prostitution laws across the world. But the issue
of ignorance of human rights while formulation of prostitution regulations is becoming an
increasingly critical issue56

52
Procon.org, 100 countries and their prostitution policies, BRITTANIA (Apr. 23, 2018, 1:37 AM),
https://prostitution.procon.org/countries-and-their-prostitution-policies/; Sex work law- Countries, GOVERNMENT
OF THE UNITED KINGDOM ( Sept. 19, 2021, 2:32 PM), http://spl.ids.ac.uk/sexworklaw/countries.
53
Id.
54
There have been reports of eviction of prostitutes and ignorance of complaints of sexworkers by the police, see
Sex Workers’ Rights are Human Rights, AMNESTY INTERNATIONAL (Aug.14, 2015, 9:00 AM),
https://www.amnesty.org/en/latest/news/2015/08/sex-workers-rights-are-human-rights/.
55
Charlotte Mcdonald-Gibson, Drive-in sex plan to curb prostitutes in Europe’s playground, INDEPENDENT (Oct.
23, 2011, 6:54 AM), https://www.independent.co.uk/news/world/europe/drivein-sex-plan-to-curb-prostitutes-in-
europe-s-playground-2330219.html.
56
Sex Workers’ Rights are Human Rights, AMNESTY INTERNATIONAL (Aug.14, 2015, 9:00 AM),
https://www.amnesty.org/en/latest/news/2015/08/sex-workers-rights-are-human-rights/.

15
CONCLUSION-

It is important for developed countries like Austria to be the flag bearer of change when it comes
to demarginalisation of prostitution. The change in prostitution laws is not going to immediately
bring rapid reforms and every country will start writing up their own regulations, but like
Netherlands in 2000, some country needs to take that first step towards complete acceptance of
prostitutes in society. Austrian policies towards voluntary sex work need to be much more
comprehensive as they are now and need to address the problems of the vast majority of human
rights violations of these sex workers. Amnesty International has been a champion of protection
of human rights of Prostitutes and has recommend “decriminalization of consensual sex work,
including those laws that prohibit associated activities—such as bans on buying, solicitation and
general organization of sex work.” This is based on evidence that these laws often make sex
workers less safe and provide impunity for abusers with sex workers often too scared of being
penalized to report crime to the police. Laws on sex work should focus on protecting people
from exploitation and abuse, rather than trying to ban all sex work and penalize sex workers. 57
Austrian sex workers go through a lot, and there are a number of human rights violations
happening every single day in the country because of the harsh treatment of these prostitutes.
Currently, there a number of restrictions on sex workers, and sometimes, they are treated as if
they belong to a lesser class which does not deserve basic human decency. The first step towards
correction of this state of the trade in the country is empowerment of the prostitutes, and the best
way to do that is to target the administrative deficiencies in the system, and reduce the policing
in and around prostitution (as that is the main cause of corruption and rights violation at the
ground level). Austrian laws on prostitution need to become much more prostitution friendly and
there needs to be recognition of the harsh truth about the conditions of life of these prostitutes at
the highest level (federal government or supreme court), as that would give a much more public
field for these rights to be recognised around the country. Sex work that is not visible to the
public eye should be treated and respected as part of the private life of the worker (which is the

57
Amnesty International publishes policy and research on protection of sex workers’s rights, AMNESTY
INTERNATIONAL (May 26, 2016, 12:00 AM), https://www.amnesty.org/en/latest/news/2016/05/amnesty-
international-publishes-policy-and-research-on-protection-of-sex-workers-rights/.

16
law in India), so as to prevent unwanted police intrusions. The Austrian government needs to
give importance to constitutional morality and needs to step away from societal morality when it
comes to this issue, where there are daily violations of basic human rights.

The root cause of all discrimination against prostitution is the stigmatization of the trade around
the world. The impression that people have of sex work has been the same for quite some time
and revolves around the indecency of the people involved in it. Basically, societal view of people
involved in sex trade is that they lack the basic morality to be a part of the society. There is a
lack of respect for sex workers around the world and that stems from the fact that human society
has a habit of initially rejecting something that is new to them. Whether it be the civil rights
movement,58 or equality for the LGBTQ community 59, it has taken years of governments and
people to be sensitized to these topics and learn to have a conversation about them, and
prostitution is also not going to be that different. But the main difference is while other issues are
mostly visible to the public eye, prostitution occurs in a metaphorical world of its own in the
eyes of people, and this perception makes it harder to influence change through public
confidence and makes the need for improved legislations even more urgent. Sex workers are an
extremely marginalized group, which are almost forced to live outside the law and discriminated
against on a recurring basis. But the ironical fact is, much of voluntary prostitution arises from
the poor living conditions of men and women, which are forced to take on the trade, and the
current legislations indirectly promote human rights violations, to reduce sex work, which in
fact, actually bolsters underground prostitution and pushes it out of the legal sphere, making
regulation an even bigger task for authorities. Austrian prostitution, as of today, stands in a
precarious position, where enrolling oneself in the legal structure almost guarantees human rights
violations, whereas humans rights violation is a possibility, not a surety in the underground
network. Any kind of change in this legal structure is not going to be an easy task, as any
position to be taken in this entire debate can spark a lot of controversies, but the fact that debates
can happen in the near future is a step in the right direction for prostitution in Austria and around
the world.

58
Civil Rights Movement, HISTORY (May 17, 2021, 3:54 PM), https://www.history.com/topics/black-history/civil-
rights-movement
59
ANDREW SULLIVAN, THE GAY RIGHTS MOVEMENT (1 ed. Fitzroy Dearborn 2001).

17
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