Agent Provocateurs and Rights Violations
In order to tackle unregistered sex work, the state of Austria has been engaging undercover police forces as agent provocateurs. Beside the fact that the implementation of agent provocateurs is highly disputed in general since the European Court of Human Rights' (ECHR) decision in the case Furcht vs. Germany (2014), affected sex workers report degrading behavior and violation of rights and human dignity by police officers. This article will make an attempt to look broadly into legal foundations and provide two cases of rights violations of sex workers which have been reported by them to "PIA", a counseling-office for active and former sex workers in Salzburg and "sexworker.at", an online forum for sex workers in Vienna, Austria.1
Keywords: sex work, human rights, police, agent provocateurs
Sex work is regulated differently in each federal state of Austria.2 Hence, areas where sex work is allowed can vary according to the regulation in each federal state. Some states permit sex work only in brothels, others provide "tolerance zones" for street-based sex workers. The laws also strictly regulate the places of "initiation" (Anbahnung), which basically translates to places for finding clients. Initiation on the internet is not permitted in Austria. However, globally, due to its ease, sex workers of all genders make use of the internet to promote their services. Consequently, this is also one of the places agent provocateurs search for unregistered sex work services.
Sex Workers & Police
It is a rather well documented fact that sex workers are among the most vulnerable groups when it comes to suffering from civil and human rights violations (Amnesty International 2016a: 1). The so-called Whore-Stigma (Pheterson 1990; 1993), social morals (Bernstein 2007) and missing or insufficient legal protection are circumstances which pave the way for mistreatment and disrespect on many levels. This comprises both non-state and state environments and actors. Rights violations stemming from non-state actors such as pimps, customers or family members have been researched quite profoundly, particularly by abolitionist authors (e.g. Erbe 1984: 610–612 or Farley 2004: 1094–1096). Regarding civil and human rights violations by state actors there is abundant literature on a global scale documenting breaches of law by police against sex workers (Aborisade 2018; Amnesty International 2016b; Fick 2006; Gülçür & Ilkkaracan 2002; Rangasami et al 2016; Rhodes et al 2008).
Furthermore, in states like Sweden or Norway where the so called "Nordic model" of client punishment is in force, sex workers try to evade encounters with police at all costs. Although offering sexual services is not punishable in these systems, sex workers in Norway fear "arrest or detention; deportation; surveillance leading to clients' arrest and subsequent loss of livelihood; fines; confiscation of money; discrimination; and exposure of their identity" (Amnesty International 2016b: 13).
"You only call the police if you think you are going to die. If you call the police, you lose everything." — sex worker from Norway, cited in Amnesty International 2016b
In fact, most of the sex workers contacting PIA or sexworker.at for counseling refrain from getting in touch with police as well, even if it concerns their own safety.
Agent Provocateurs
As mentioned initially, the state-use of undercover police officers as agent provocateurs has been restricted severely by the European Court of Human Rights. In regard to the case Furcht vs. Germany, the ECHR states that "The public interest in the fight against crime cannot justify the use of evidence obtained as a result of police incitement, as to do so would expose the accused to the risk of being definitively deprived of a fair trial from the outset" (ECHR 23.10.2014 – 54648/09). This decision's implementation into national law is especially challenging for Austria, since courts have made a habit of using reduced sentences in settled case-law as compensation for operating with agent provocateurs (Schwaighofer 2015). Even though this decision applies primarily to judicial penal law, correspondingly it stretches out to administrative penal law (Swoboda 2016: 304), which unregistered sex work falls into.
At this point, the subject of proportionality emerges: Does it pay off to employ agent provocateurs in the face of low penalty levels for administrative offences? Overall, this entire subject remains a complex matter to be elaborated upon by scholars of law.
However, the accountability of agent provocateurs becomes obvious in conjunction with the regulations in the Austrian penal procedure code (Strafprozessordnung). In the second section of the fifth paragraph it is stated:
"(2) (…) In any state of the procedure, legally granted powers shall be exercised in a manner which avoids unnecessary attention, respects the dignity of the individuals concerned and protects their rights and interests worthy of protection." (§ 5 (2) StPO – Gesetz- und Verhältnismäßigkeit)
In the following section we will provide one detailed and one rather short case of agent provocateur activities reported by sex workers. We consider these activities to be a violation of the sex workers' human and civil rights. It is important to emphasize that none of the sex workers affected want to file a suit against the agent provocateurs since they want to "get it over with" and fear drawing too much attention from state institutions.
Cases of Agent Provocateur Proceedings Against Sex Workers in Austria
Sex Worker A
A, a 56-year-old registered German sex worker scheduled an appointment with a client in a city in Austria and booked a hotel there. She picked her client up from the first floor and together they went into her room. Immediately after arriving in the room, the "client" revealed his identity as a police officer (1), showing his official ID, A reports. He said some things in a very rough tone which A initially could not understand due to the officer's strong Austrian dialect. When she asked what she did wrong, officer 1 told her to be quiet until his colleagues arrive and that she will be told afterwards.
A was confused, asking why there is the need for more colleagues, since she was alone. Within a short timeframe, seven men were inside her room, some searching under the bed, some going through her private bag and suitcase. None of them was wearing uniforms while those who arrived later never showed her any ID. She was shocked and kept asking what the matter was. Officer 1 yelled at her to shut up and asserted that this is the usual procedure. He threatened her to seal the door if she kept talking and told her she would have a very high price to pay.
One of the other men eventually told her that she is not allowed to offer services in hotels and that she needs to carry a health-book.4 When she answered that she indeed carries a health-book, none of the men were interested. During the incident, officer 1 was walking up and down the room, two men went outside to watch the door, two men were watching the door from inside, and two men were sitting with her at the table. A was very intimidated and could not understand why such severe control was necessary for one woman alone.
One of the men made her sign a protocol he had written down. When she asked for a copy, he declined, stating she is not supposed to get one. After signing the paper, she was asked to pack her belongings and leave the city. A had booked and paid two nights in advance and asked if she could, at least, stay the night. Officer 1 yelled at her again that she should pack and move. They also made her delete her advertisement on the internet before she left. While she packed and changed clothes, the men were always in the room. Two men went to the elevator with her; she was allowed to check out by herself, after which they were waiting in the garage for her to depart.
At no point did the officer give A instructions about her rights of appeal, as he was obliged to.
Many questions emerge: Why was it necessary to mobilize seven men when it was clear that there was only one 56-year-old female sex worker? Why were four men watching the door? Why did only one of the men show A his ID? Why did they accompany her to the elevator, let her check out alone, but then wait in the garage afterwards?
Apart from that, yelling at and threatening a person who clearly cooperates is degrading and violates her right to respect of dignity. Regarding unnecessary attention, the two men standing outside the door do exactly that. Last but not least, the banning order issued remains questionable, since police officers cannot suspend a person from an entire city.
Sex Workers B & C
At a small restaurant/bar known as a venue for unregistered sex work in Austria, B & C met a client — officer 2 — at the bar. The three of them negotiated the price for services for an hour and went upstairs into a room. Having arrived there, C wanted to have a quick shower and went to the bathroom. B took off her clothes and asked the client, officer 2, to take off his clothes as well and put the money on the table next to the bed. He refused and stated he would be waiting for C to finish her shower.
It was only after undercover colleagues of officer 2 could be heard controlling downstairs at the venue, and because C rushed "half-naked" out of the bathroom to warn the two in the room, that the officer disclosed his real identity.
In this case, the question is: why did the officer have to wait for the women to expose themselves? The price negotiation, the fixation of the price, and going into the room should be sufficient evidence to issue an administrative fine. Waiting for the women to undress is degrading and does not respect their dignity as human beings.
Conclusion
As we have indicated above, the relationship between sex workers and police is a troublesome one. On the one hand, police are an institution granted significant powers by law and represent a male-dominated environment in which gender bias emerges. On the other hand, sex workers are stigmatized heavily and are deprived of sufficient legal protection.
Given this framework of interaction and as the cases in this article indicate, it is fairly reasonable for women offering sexual services to refrain from contacting the police even in cases of need. Self-evidently, more research has to be conducted and more cases should come into light to get a deeper insight into rights violations reportedly committed by the state against sex workers in Austria.
1 PIA = Psychosoziale und juristische Information und Anlaufstelle für Sexarbeiter*innen, Salzburg. sexworker.at = Online-Forum für Sexarbeiter*innen, Wien.
2 Austria consists of nine federal states (Bundesländer), each with its own regulatory framework for sex work.
4 The health-book (Gesundheitsbuch) is a mandatory document for registered sex workers in Austria, documenting regular medical examinations.
Autor*in:Christine NaglSozialarbeiterin, Gründerin der Beratungsstelle Pia Salzburg, Gründerin Ibus, Sexworker.at und Red Edition, ehemals. Vorständin Tampep