2. Why is it difficult to prosecute offenders, despite the new provisions?
a) Sexual exploitation and financial exploitation of women
Sexual exploitation is always the case in prostitution (trafficking women for sexual exploitation). Many women, however, out of fear of violence or threats from offenders, insist that they are willing prostitutes.
But if women decide to give evidence against suspects, they must be able to prove that they were sexually and financially exploited.
Financial exploitation exists if the offender has kept more than 40% of the woman’s earnings (§ 18a German Criminal Code). (§180a STGB)
However, the women usually have little insight into the actual business, since the "client" usually pays the pimp direct, or payment is effected with so-called "coupons".
This means that the women have no idea of their earnings and so are hardly likely to able to prove that they were exploited from a financial point of view.
Requirement: with respect to the criminal offence of exploitation, more emphasis needs to be put on personal exploitation by violating the woman’s personal freedom, rather than on her economic exploitation.
b) Abuse of defencelessness in a foreign country
It must be proved that the offenders abused the defenceless situation of the women through their residence in a foreign country. But if offenders can demonstrate plausibly that the woman was in the country for a greater length of time, this is enough to weaken the point.
c) Attempted procuring for prostitution
If the offender has talked the woman into coming to the "Golden West", this can be assessed by the court as an attempt to force the woman into prostitution. But suspects often insist that the women were in love with them and came willingly. (This is also described as the "Romeo effect". Young, good-looking men flirt with young girls, not with a view to starting a relationship with them, but of abducting them to somewhere where they will be coerced into prostitution.)
It is very hard to prove exploitation in prostitution, abuse of defencelessness in a foreign land, or attempts to coax a woman. On these crucial points statements from the women, in which they declare how and by what means they were tricked by traffickers, are crucial.
Thus statements from the affected women are important evidence against human traffickers. Only if the women have the courage to speak out against the culprits can the law help them, the suspects be charged and perhaps convicted.
2.1 But how can the authorities get statements from the women?
Trafficking in women is a so-called "control crime" (detected e.g. in police raids). It is seldom that trafficking of this type is reported by the sufferer or a third party. This means that the authorities need to carry out regular checks or raids on brothels and other places where prostitution takes place, if they suspect the existence of trafficking in women or forced prostitution.
If foreign women are encountered in such controls, they are often incapable of explaining their situation. They are frightened of being arrested, of being deported from Germany - and most of all of revenge by the suspects.
In addition, women have often had bad experiences in their home countries with the authorities/police and are fundamentally distrustful.
In these cases they often insist, if caught, that they work willingly as prostitutes.
Since 2001, prostitution has ceased to be described as "immoral", which means that investigators can no longer arrest women working in brothels or other places where prostitution is practised for "immorality" and possibly find out this way whether the women are prostituting themselves under duress.
If the women declare that they prostitute themselves willingly, the authorities are unable to investigate for human trafficking and so they check whether the women have residence and work permits.
Investigations then focus on violations of Aliens Law, in other words on the women themselves (case study Elena) and not on the offenders.