Austria: Discriminations against Sex Workers

Lacking Empowerment (Article 6, §§ 1 and 2)

Most women are in sex work for economic reasons: As they cannot find another job, sex work has become their only viable remedy to alleviate their poverty. As the labor market becomes more specialized and economies demand higher levels of skill, ever more women find themselves in such a precarious situation. Articles 6 and 11 require the State Party to react, as without support and capacity building by training programs they may not be able to improve their living conditions on their own.
The feminization of poverty and in particular the low net incomes of women in sex work are illustrated by the following statistics.

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  As to the economic background, in 2010 poverty was defined by an income of less than 1,031 € per month. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} In 2010, 13% of women had earning below the poverty level.
  
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  Single mothers are a high risk group for poverty, as they may not find jobs after parental leave. In particular, they may not find jobs that allow them to care for their children.
  
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  Migrants are another high risk group. For instance, they have particularly high drop-out rates from the school system (see State Report, item 65). About 80% of commercial sex workers are immigrants, most of them living in poverty. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
  
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  According to government statistics, ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} accumulated annual incomes of estimated 30,000 women in sex work (section 1.2) are estimated at 429 million Euros. Hence, the monthly average net income is estimated 1,192 € and close to poverty line. In the low-paid segments (street prostitution) current market prices are 15 € per job; ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} here expected income is way below the poverty line.
  

Contrary to the obligation under Article 6, the Austrian social welfare system does not foresee specific support for the vulnerable group of sex workers, in particular women. On the contrary, as outlined in the section below, from the moment on, when a woman enters sex work, she suffers from the stigma attached to prostitution. It compromises her prospects to re-enter the regular labor market. In such a situation, considering also her lacking or outdated skills for a qualified job, as alternatives to sex work there remain only low-paying, low-prestige dead end jobs without prospects for a better life. Even women rescued from sexual exploitation may perceive the working conditions in such jobs as inferior to their previous situation. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Without empowerment, these women remain caught in poverty and they have little opportunity for movement up the status ladder.

Article 6 would require the State Party to provide them with opportunities for acquiring skills to enhance their chances for a regular employment of their choice. However, Austrian prostitution policies are based on the legal fiction that sex workers are self-employed. Therefore, they are not covered by unemployment insurance and are not eligible for state sponsored training programs. Instead, some charities offer training, but as sex workers are considered to be self-employed, they are not entitled to paid vacations either, whence many cannot afford to take part. Thus, on the one hand sex workers are de facto denied access to social welfare, but on the other they are required to contribute to the social welfare system with taxes and social insurance payments.

5. Deliberate Stigmatization (Article 7)

Most women entered sex work, as their right to decent work was not respected, which left sex work as their only viable option (sections 3.3. and 3.4). Rather than accepting the resulting moral liability and help these women to escape poverty (section 3.4), Austria further impedes them by stigmatization that is a direct consequence of State Party policies at the national, provincial and communal levels. This resulted in risks of exploitation and harmful working conditions.
The following case of 2010 illustrates the ongoing stigmatization that spills over to women in general. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} The city of Vienna asked a female tenant to prove conclusively that unproven allegations about her prostitution were false. Otherwise the city would terminate the rental agreement and she would become homeless. (The woman was young and had different friends, which some of their neighbors did not accept.) As it is impossible to prove, not to engage in sex work clandestinely, the woman could only retain her apartment, as her case stirred public controversy. A registered sex worker in her situation would have lost her home.
Concerning policies at the national level, stigmatization is caused by the “immorality status” of sex work, referring to a judicial interpretation of section 879 Civil Code.

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  According to a key ruling by the Austrian Supreme Court of Justice of 1989, the contract to exchange sex for money between a sex worker and her client was contrary to public moral (3Ob516/89 of 28.06.1989): If a customer did not pay, the sex worker could not initiate a civil action. As a consequence, there was no legal option to negotiate contracts based on sex work, sex work was not recognized as a trade, a profession, or another gainful occupation and sex workers did not have any legal remedy, if clients denied them the payment of their services. Consequently, Austria denied sex workers the right to fair wages. Only recently did the Supreme Court of Justice partially revoke this key ruling (see 3Ob45/12g of 18.04.2012), but up to date, there has been no case in Austria, where a sex worker successfully sued a customer to pay for the provided sexual services.
  
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  In international case law behavior of clients amounts to rape, if they use deceit to obtain sexual services from sex workers without pay. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} However, in another ruling (10Os182/84 of 07.11.1984), Supreme Court of Justice took criminal responsibility away from such clients, if they just wanted save money and did not use brute force. Moreover, Supreme Court of Justice denied sex workers criminal law protection against exploitation by pimps, as the owner of a brothel may determine the conditions of sex work (4Ob78/93 of 29.09.1993). Such lack of judicial protection of sex workers makes working conditions in sex work harmful.
  
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  Austria does not protect the rights of sex workers to rest, leisure and reasonable limitation of working hours. Further, due to the “immorality status” sex workers in brothels could not sue the brothel owner for payment and they still depend on the mercy of the brothel owner, if and how much of their earning they actually receive. In particular, in no brothel in Austria can sex workers enjoy periodic holidays with pay, nor do they receive extra remuneration for work on public holidays.
  
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  Moreover, stigmatization extends to everyday life. Supreme Court of Justice assessed sex work as anti-social behavior and a “degradation of the performer’s intimate sphere” (1Ob728/85 of 15.01.1986 and 2Ob23/03a of 12.06.2003). In line with such rulings, alleged sex work still is a legal reason to exclude women from their legal rights to inheritance (section 768 Civil Code), it is a legal reason for divorce, friends of sex workers may lose their jobs in civil service, ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} and authorities could remove the children from a sex worker and place them under foster care.
  

Policies by provinces and communities worsen the situation of sex workers, either deliberately in order to chase them away and bar sex work altogether, or due to ignorance of the reality of their lives. As a result, they violate the right to safe working conditions.

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  As an illustration, some municipalities tried sweeping prohibitions, which Constitutional Court declared as unconstitutional. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
  
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  Other municipalities and district authorities utilized the combined effect of the legal regulations at different levels to maximally restrict sex work. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} Thereby often most elementary human rights of the concerned persons were ignored: There are cases, where women were fined for illegal prostitution, although authorities could not prove it. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
  
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  The latter approach is exemplified by the implementation of the Vienna Prostitution Law since the end of 2012. Administrative regulations, based e.g. on the building code, were used to shut down many of about 450 small premises that hitherto offered safe working places to about 2,000 women, including room maids, waitresses and women in sex work. Moreover, about 120 women in street prostitution were pushed to the outskirts in order to ensure decorum in urban life. The impact for the concerned women has not been considered in the formulation of these measures: They are now without infrastructure and therefore at higher risk of harm. ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT}
  
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  Policies of most Austrian provinces prefer large brothels, as these are generating more tax revenues. Thereby, the inevitable dangers of organized crime, sexual exploitation and trafficking are deliberately ignored: ^{NOTEREF _Ref341178537 \h \* MERGEFORMAT} For, in view of the generally weak financial and legal position of sex workers, policies that prohibit sex work outside of brothels or pressure sex workers to work for brothels make them vulnerable to exploitation. For, in order to pay the room rent in the brothel, social security, taxes, and often the pimp, who actually controls the brothel, sex workers become easily trapped in escalating financial obligations leading to debt-servitude; their expenses are fixed, but their income is not.
  
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  Sex work of a few women in their own premises would be a safe and crime-free form of pay sex with barely any nuisance; it could be socially optimal. ^{NOTEREF _Ref333676600 \h \* MERGEFORMAT} . For, if sex work is not spatially concentrated, it is less controlled by pimps, as the ratio of income to efforts is unfavorable to them. Moreover, it causes fewer nuisances. However, in Austria this form of sex work is prohibited in all provinces.
  

It follows that Austria applies double moral standards: Sex industry as economic sector is accepted, with a preference for large brothels, but sex workers are not.

6.